WASHINGTON — U.S. prosecutors and defense attorneys for Michael Flynn asked a federal judge Tuesday to postpone Flynn’s long-delayed sentencing until after the Justice Department’s internal watchdog issues a report in coming weeks on the handling of the FBI’s investigation into possible coordination between Russia and the Trump campaign in 2016.
Sentencing for President Donald Trump’s former national security adviser currently is set for Dec. 18, and federal prosecutors were scheduled to notify the court Monday whether they would reverse their previous recommendation of probation and instead ask for prison time for the retired three-star Army general.
However, in a terse, two-page filing, both sides said Tuesday evening that they expect the forthcoming report by Inspector General Michael Horowitz, due out Dec. 9, “will examine several topics related” to a Flynn defense’s request to find prosecutors in contempt for alleged misconduct.
Flynn has accused prosecutors of withholding evidence and sought to compel the government to turn over further documents, if they exist, asserting that he was duped into lying to FBI agents about his contacts with Russia’s ambassador after the 2016 U.S. election.
“Both parties share the Court’s goal to move this case along expeditiously. The parties nonetheless believe that their sentencing submissions will be incomplete if they are filed prior to the Court’s issuance of its ruling” on the pending defense motion, both sides wrote.
Additionally, they noted that Horowitz’s report “is expected to issue in the next several weeks. For these reasons, the parties respectfully request that the Court suspend the currently scheduled dates for briefing and sentencing until further order of the Court.”
U.S. District Judge Emmet Sullivan of Washington, District of Columbia, did not immediately respond to the request to hold off sentencing.
Both sides, under court rules, are barred from discussing the case.
The Washington Post reported last week that the inspector general, in the report, is expected to find that political bias did not taint top officials running the FBI investigation, while at the same time criticizing the bureau for systemic failures in its handling of surveillance applications.
Flynn pleaded guilty two years ago to lying to investigators. He has since changed his legal team, and while his current attorneys accuse the government of “outrageous misconduct” warranting dismissal, they have not formally moved to toss out his case or undo the plea agreement he reached with prosecutors.
Flynn, 60, pleaded guilty on Dec. 1, 2017, to lying to the FBI about contacts with then-Russian Ambassador Sergey Kislyak, becoming one of the first Trump associates to cooperate and the highest-ranking official charged in special counsel Robert Mueller III’s investigation of Russian interference in the 2016 presidential election.
After his admission that he lied about conversations with the ambassador about U.S. sanctions and acknowledging he misrepresented work he had done on behalf of the Turkish government in filings to the Justice Department, Flynn assisted prosecutors with multiple investigations, including Mueller’s.
Because of his cooperation, Flynn’s attorneys and the special counsel, at about this time last year, agreed to recommend he get no prison time.
But at an initial sentencing hearing on Dec. 18, 2018, Sullivan lambasted the Trump security adviser for suggesting prosecutors overreached and for appearing to play down his offenses.
“Arguably, you sold your country out,” Sullivan told Flynn, warning he might sentence Flynn to prison. Flynn’s lawyers agreed to Sullivan’s offer to postpone sentencing so that Flynn could continue to show his good faith cooperation.
This spring, however, Flynn switched defense teams. His new team, led by former federal prosecutor Sidney Powell, in August unleashed a full-bore attack on Mueller’s investigation, accusing prosecutors of “malevolent conduct” and saying Flynn was the subject of an effort by unscrupulous FBI, CIA and Pentagon investigators “to smear him as an ‘agent of Russia,’” or other abuses involving leaks of classified information.
Flynn’s attorneys went further in late October, declaring him legally innocent, arguing he was entrapped and announcing that he would move to dismiss the case against him “based on the outrageous and un-American conduct of law enforcement officials.”
Flynn’s defense for the first time claimed that he “was honest with the [FBI] agents to the best of his recollection at the time” of a critical Jan. 24, 2017, interview, contradicting past sworn statements that he lied.
Sullivan has not said how or when he would rule, but had set the Monday filing deadline for prosecutors’ sentencing memorandum, and Dec. 10 for Flynn’s response.
Prosecutors led by Brandon Van Grack, a former Mueller team member, have said that “the government has exceeded its discovery and disclosure obligations in this matter.”
They urged that Sullivan order Flynn either to formally seek to dismiss the prosecution or to withdraw his plea and potentially face trial.
In a court filing last month, prosecutors said they now expect to contest at Flynn’s sentencing the credit they’d awarded him for “cooperation and candor.”
Flynn resigned from his top White House post in February 2017 after the White House said he misled Vice President Mike Pence and other administration officials about his contacts with Kislyak.
Flynn’s plea revealed that he was in touch with senior Trump transition officials before and after his communications with the ambassador. The pre-inauguration communications with Kislyak involved efforts to blunt Obama administration policy decisions on sanctions on Russia and a United Nations resolution on Israel.
Under past questioning by the judge, Flynn has repeated his admissions of guilt under oath, acknowledging his misstatements to Pence, senior White House aides, federal investigators and the news media before and after Trump’s January 2017 inauguration about the nature of his foreign contacts.