Prosecutors say that former national security adviser Michael Flynn is now backing away from some of the statements he made to Robert Mueller’s team. | Alex Wroblewski/Getty Images Legal Michael Flynn's relationship with federal prosecutors appears to sour Government lawyers have dropped plans for Flynn to be the star witness at his former business partner's upcoming trial.

A federal judge in Washington is demanding answers from both prosecutors and lawyers for former national security adviser Michael Flynn after Flynn’s relationship with prosecutors apparently soured to the point he was dropped as a government witness for the looming trial for his former business partner.

Flynn had been expected to be the prosecution’s star witness at the trial of businessman Bijan Rafiekian on charges related to lobbying and public relations work the two men did that prosecutors contend was an influence campaign secretly backed by the Turkish government.


However, prosecutors privately told a federal judge in Virginia and Rafiekian’s lawyers last week that they don’t plan to call Flynn any longer because they’ve lost confidence in his testimony.

The move prompted Washington-based U.S. District Court Judge Emmet Sullivan to issue a sharply-worded order Tuesday afternoon seeking a full explanation of the falling-out and why he was told a little over two weeks ago that Flynn’s testimony was going forward as scheduled.

Sullivan ordered prosecutors to answer by Wednesday and Flynn’s defense to respond by the close of business on Thursday. “The Court will not extend these filing deadlines,” the judge warned.

Court filings unsealed earlier Tuesday in Flynn’s partner’s case in Virginia said the decision to dump Flynn as a witness followed “trial prep” sessions where prosecutors were dissatisfied by answers to questions critical to the case against Rafiekian, better known as Kian.





Flynn’s new lead attorney, Sidney Powell, suggested that prosecutors were insisting that the former Defense Intelligence Agency chief give inaccurate testimony about a belated filing Flynn’s firm made under the Foreign Agents Registration Act.

“The prosecutors have been adamant Mr. Flynn testify that he authorized filing the FARA form knowing and intending that it contain false statements,” Powell wrote. “Mr. Flynn cannot give that testimony because it is not true.”

Defense attorneys for Kian also reacted with outrage to the last-minute change of heart from the prosecution.

“There are no new facts that the government has discovered about Flynn's role or his actions during the period charged in the Indictment. What has changed is that the government has determined that (a) Flynn's testimony is not to be believed, (b) the government lawyers cannot sponsor false testimony from Flynn, and (c) the government now cannot call Flynn as a witness,” Kian’s lawyers Robert Trout and Mark MacDougall wrote.

Flynn was never charged in the foreign-lobbying case brought late last year, but as part of a plea deal cut earlier with former special counsel Robert Mueller’s office, the retired Army general admitted that he’d misled Justice Department officials about the involvement of Turkish officials in the influence effort.

Flynn made the admission about Turkey as he pleaded guilty to a charge of making false statements to the FBI about his dealings with the Russian ambassador during the presidential transition after the 2016 election.

Prosecutors say that Flynn is now backing away from some of the statements he made to Mueller’s team and in court during his guilty plea in December 2017. At that session, Flynn acknowledged that he “made materially false statements and omissions” in FARA filings about the Turkey-related lobbying, but Flynn now maintains he never read the FARA submissions he signed, the court documents say. He also claims he never lied to his lawyers as they prepared the filing.

“As for the final filing, Mr. Flynn recalls reading only the cover letter,” Flynn’s new defense team wrote. “Regardless of what he read, he did not intend to or knowingly make any false statements, and this is a complex area of law about which he knew nothing.”

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Flynn’s new attorneys are seeking to shift blame for any inaccuracies to his former lawyers at Covington & Burling. The stance seems to foreshadow an awkward courtroom moment for Flynn’s former lawyer Robert Kelner, who may be called at the upcoming trial to testify that he was duped by Flynn.

“Mr. Flynn trusted his former counsel who held themselves out as experts in this area of law,” Powell and her colleagues wrote. “They had the facts, interviewed multiple people, and reviewed many documents and emails which he was incoming and then-serving National Security Advisor, then in the uproar attending his departure,” the defense lawyers wrote, referring to Flynn’s firing for lying to Vice President Mike Pence about contacts with the Russian ambassador during the transition.

Kelner declined to comment Tuesday.

As prosecutors dropped Flynn from their lineup for the Kian trial, they also indicated plans to formally name the retired general as an unindicted co-conspirator in the case. That’s a reversal from less than a month ago, when the government told the judge overseeing the case that Flynn wasn’t considered a conspirator.

The government’s plan to treat Flynn as a co-conspirator could ease admissions of emails and other memos related to the case, but Kian’s lawyers asked U.S. District Court Judge Anthony Trenga to deny the prosecution’s ability to put in new evidence as a result of the recent change.

“The Court should not permit this to happen—either as a matter of law or pursuant to the Court's discretionary authority to prevent the government from making up its case as trial approaches,” Kian’s lawyers said.

Late Tuesday, Trenga denied the government’s motion to admit out-of-court statements by Flynn. The judge said prosecutors hadn’t yet presented him with enough evidence to conclude that Kian was part of a conspiracy with Flynn or others to secretly act as foreign agents for Turkey. However, Trenga indicated he’d revisit the issue if prosecutors present him with additional evidence, like statements from Flynn.

President Donald Trump seemed delighted by news of the ruling, retweeting a Fox News video segment suggesting, inaccurately, that the judge’s decision exonerated Flynn.

How much damage the judge’s ruling will do to the prosecution’s case is uncertain. In a recent filing they said they were only seeking to admit a single email from Flynn under the co-conspirator theory, which allows hearsay statements to be admitted in court.

Prosecutors’ concerns about putting Flynn on the stand seem to have grown after he shifted attorneys about a month ago, opting to be represented by Powell, a Texas lawyer who is a strident critic of Mueller’s office.

While Powell was expected to take a more combative approach with the prosecution than the white-collar defense lawyers who previously represented Flynn, there was little public sign of a strategy shift before the court filings were unsealed on Tuesday detailing a previously secret back and forth over the prosecution’s decision not to call him in the Kian case. While many legal experts speculated that Flynn might back out of his plea deal, Powell said last month that no such plan was afoot.

It’s unclear whether prosecutors consider their current disagreement with Flynn so significant that they will accuse him of breaching his plea agreement. That could expose him to new charges.

Powell claims that during a June 27 discussion with prosecutor Brandon Van Grack, who was on Mueller’s team and is now handling Flynn’s case for the U.S. Attorney’s Office in D.C., Van Grack engaged in a “heated exchange” as the new Flynn lawyers explained his more benign view of his actions with respect to the Turkish-related lobbying.

Even if prosecutors don’t seek to re-open the case against Flynn, the falling-out could mean trouble for him when he’s finally sentenced on the single felony false-statement charge he admitted to. In advance of his expected sentencing last December, Mueller’s team said Flynn’s cooperation was so exemplary that he should not get any jail time.

However, Sullivan seemed to be considering prison time for Flynn. The judge ultimately postponed sentencing, at Flynn’s lawyers’ request, so that Flynn could demonstrate further cooperation by testifying at Kian’s trial.

In the new filings Sullivan has ordered, prosecutors and Flynn’s lawyers seem likely to offer starkly different assessments of whether he or the government is responsible for the breakdown.

As the details of Flynn’s rupture with prosecutors went public Tuesday, Powell sought to play down the significance of the disagreement.

“General Flynn followed the law and hired the FARA experts,” Powell said in an email to POLITICO. “General Flynn is still cooperating with the government even if they don't call him as a witness.”

Asked Tuesday whether the government may seek to have Flynn declared in breach of his plea agreement or may change their position on whether he deserves jail time, Flynn attorney William Hodes said: “Who knows? No clue.”

Prosecutors contend they can prove their case against Flynn’s partner without putting Flynn on the stand, but jurors could have questions about Flynn’s absence. Government lawyers appear to believe they can meet their legal burden through emails and documentary evidence, as well as testimony from lawyers involved in submitting various filings related to the lobbying.

Prosecutors’ decision to drop Flynn from their case doesn’t mean it’s certain he won’t testify at Kian’s trial, set to open next Monday in federal court in Alexandria, Va. Defense lawyers could call him as a witness, although they’ve devoted many of their pretrial filings to arguing that Flynn is a serial liar.

Whatever sentence Flynn winds up receiving may not be the final say on whether he actually serves prison time. Many of the retired general’s friends and associates have called for President Donald Trump to grant Flynn a pardon, painting him as a victim of overzealous, politically motivated FBI agents and prosecutors on Mueller’s team.

Few hints of the drama surrounding Flynn’s role in the Kian case were public before Tuesday, but the docket in Kian’s case showed sealed filings piling up over the past week. Prosecutors asked that their decision to drop Flynn as a witness be kept secret until the trial because of the impact it could have on jurors.

Trenga initially sealed the filing and ordered Kian and Flynn’s lawyers not to reveal it to anyone, but those attorneys objected to the secrecy. After a closed-door hearing Monday, the judge ruled that the bulk of the court filings about Flynn should be made public.

