The evidence of prosecutorial misconduct in the Michael Flynn case continues to grow. And with each new court filing by Flynn’s new criminal defense attorney, Sidney Powell, the public learns more about the events leading up to Flynn’s guilty plea and the government’s manipulation of Trump’s former national security advisor.
The latest development came on September 30, when Powell filed a supplement status report summarizing the outcome of the criminal case against Flynn’s former Flynn Intel Group (FIG) partner, Bijan Rafiekian. Presiding Judge Emmett Sullivan had requested the parties provide the court a statement concerning the impact of the government’s decision not to call Flynn as a witness in that case. That provided Powell an opening to inform Judge Sullivan that the prosecution’s case against Rafiekian had been tossed.
“On September 24, 2019, Judge Anthony Trenga of the Eastern District of Virginia granted Mr. Rafiekian’s motion for acquittal in its entirety,” Powell wrote. Then, while attaching Judge Trenga’s detailed opinion to her filing, Powell highlighted the key take-aways: “The Government [had not] presented sufficient evidence for a rational jury to conclude beyond a reasonable doubt that Rafiekian conspired with [co-defendant] Alptekin or anyone else” to act as an unregistered agent of Turkey.
Additionally, “[t]here [wa]s no evidence of discussion or suggestions, let alone an agreement, express or implied, to either avoid filing under FARA or to cause the filing of a false FARA registration statement,” Judge Trenga explained in dismissing the charges.
Powell also took the opportunity to remind Judge Sullivan that Flynn had cooperated substantially in the Rafiekian case, but that when Flynn refused to falsely testify that he had knowingly filed a false FARA statement, the government changed its tack and branded Flynn a co-conspirator. Here, she pointed to the opinion in the Rafiekian case, where the court stressed the government’s in-court admission that Flynn “was not a member of the charged conspiracy.”
Then things got really good. Powell posited that prosecutor Brandon “Van Grack was determined that Mr. Flynn would testify in the Rafiekian case that he had knowingly signed a false FARA registration, even though Mr. Van Grack knew that was not true and Mr. Flynn had not agreed to that in the course of his plea agreement.” Yet, in a heated exchange, Powell wrote, Van Grack “claimed Mr. Flynn had agreed to plead to a knowing and intentional false FARA filing.”
Then came the boom: “In our endless document review, we now have a draft of the statement of offense that proves the contrary, showing similar language deleted,” Powell told the court. This proves extremely significant.
To explain: The Statement of Offense is the document a defendant—Flynn here—signs in pleading guilty to an offense and then later swears to the veracity of in court. The Statement of Offense summarizes the facts for the court to show they are sufficient to establish that the defendant has committed the charged offense.
The Statement of Offense filed in the criminal case against Flynn detailed the various false statements Flynn made to the FBI about his conversation with the Russian ambassador, the charge Flynn pleaded guilty to. Flynn stated that “in truth and in fact, however, Flynn then and there knew that the following had occurred…” The Statement of Offense then listed the content of Flynn’s actual conversations with the Russian ambassador.
In his Statement of Offense, Flynn also acknowledged that he had filed multiple documents with the Department of Justice pursuant to FARA “pertaining to a project performed by him and his company, the Flynn Intel Group, Inc. (‘FIG’), for the principal benefit of the Republic of Turkey (‘Turkey project’).” Flynn acknowledged that the FARA filings included “material false statements and omissions,” but significantly, he did not also attest to know “then and there” that the statements were false. In other words, Flynn never said in the statement of offense that he had knowingly filed false FARA documents.
Yet Van Grack insisted Flynn had admitting to knowingly filing false FARA statements and when Flynn refused to testify accordingly, Van Grack switched to treating him as a co-conspirator. But from Powell’s latest filing, we now know that similar language, i.e., “knowingly filed” or “knowing then or there,” was deleted from the original statement of offense!
If Van Grack was involved in drafting and revising the statement of offense, he should have known that Flynn took issue with attesting to knowingly filing false FARA statements. For Van Grack to demand Flynn testify he knowingly filed false FARA statements under these circumstances is troubling and suggests Powell was not using hyperbole when she charged Van Grack with “asking my client to lie.”
These facts also place Van Grack’s later moves in a bad light. First, as detailed above, he labelled Flynn a co-conspirator. Then his team “put Michael Flynn Jr. on the witness list for the Rafiekian trial,” and “had FBI Agent Taylor contact the latter directly, despite knowing he was represented by counsel.” The prosecution never ended up calling Flynn Jr., suggesting it was a scare tactic.
Here Powell reveals more details that support that conclusion. “The government told defense counsel in the summer of 2017 that it was going to indict the FARA case then, had obtained authorization to target Michael Flynn Jr.—who had a newborn—and had seized all his electronic devices,” Powell wrote. But no indictment came once Flynn Sr., pleaded guilty.
Powell also stressed that “the government did not indict the specious Rafiekian case until more than a year after the Flynn indictment—just a few days before Mr. Flynn was to be sentenced in this Court—when the government was concerned that Mr. Flynn would withdraw his plea.”
These facts reek of prosecutorial blackmail: Flynn Sr. better plead guilty or the government will charge his son with a FARA violation, even though there was no crime—as the Virginia district court concluded in the Rafiekian case. And, to make sure Flynn didn’t balk, the prosecutors showed they were serious by indicting Flynn’s FIG partner. Then, to further ensure his cooperation, they sought to have him testify under oath that he too committed a FARA offense.
But when Flynn refused to testify that he knowingly violated the FARA law, the government attempted to retaliate and further threaten Flynn, by naming him a co-conspirator and putting Flynn Jr. on the witness list and having an FBI agent contact the son. What possible purpose for this was there, other than intimidation?
Whether Judge Sullivan sees it that way won’t be known for some time. But Powell is steadily building the case that the charges against Flynn should be tossed for egregious prosecutorial misconduct, and she is doing it by highlighting facts revealed by her review of the limited record to which she has access. How much more could she expose if the court grants her motion to compel and directs the government to turn over the evidence it has withheld from Flynn’s defense team?