General Flynn: Accepting Responsibility Verbally, but Offering Excuses in Writing – What Not to Argue in a Sentencing Memo

In the multiple investigations surrounding the Trump presidency and his administration, former National Security Advisor, General Michael Flynn, pled guilty to lying to the FBI and cooperated with the government. He cooperated ostensibly to earn a “substantial assistance letter” and downward departure motion, which is filed by the government on a defendant’s behalf to seek a sentence below the advisory U.S. Sentencing Guidelines’ range, in this case 0 – 6 months.

Normally, when a defendant pleads and cooperates, the defendant, his counsel and the government are aligned – on the same page – as to the defendant’s conduct, value as a cooperator, and oftentimes what sentence the person should receive. What is so unusual here, and perhaps why the federal judge encouraged and granted an adjournment of the sentencing, is that Flynn’s attorneys filed a sentencing memorandum seemingly attacking the underlying factual basis for the crime. The memo argued that Flynn was duped into lying to the FBI by not being afforded the opportunity to have counsel present during the interview and because he was not warned that lying to the FBI is a crime.

Even more puzzling is that the known facts do not support their positions. First, Flynn was not in custody and thus not entitled to counsel or being advised of his Fifth Amendment right to have an attorney present for any questioning. Second, the FBI report demonstrates that General Flynn was given multiple opportunities to correct his statements and was reminded of certain facts that should have made it clear to him that the agents knew about the sum and substance of his contacts with the Russian Ambassador. Third, it defies logic that someone with General Flynn’s background and experience did not know that lying to the FBI was a potential crime.

When both the attorneys and Flynn were asked by the judge whether they were arguing that Flynn was entrapped by the FBI, they said “no.” Flynn himself acknowledged that he knew it was a crime to lie to the FBI. The only seemingly plausible explanation, other than Flynn wanted to play to the President’s base and hope for a pardon, is that Flynn’s attorneys were attempting to make a technical distinction between the FBI’s interview of Flynn and their interviews of van der Zwaan and Papadopoulos, who were warned by agents that lying to them could be prosecuted.

That distinction, however, is meaningless, in that it offers no mitigation to lying to the FBI and it undercuts Flynn’s remorse and full acceptance of responsibility. More significantly for sentencing, it offers the judge competing versions of the person before him: one that wants full credit for pleading, accepting responsibility and cooperating, and one who wants to argue that he was set up and mistreated. That argument doesn’t usually lend itself to a sentence of probation.

When a person cooperates, it is all or nothing. The government is the sole arbiter of whether the person’s cooperation meets the standard of “substantial assistance” to the United States and whether a motion for a downward departure from the Guidelines will be filed. Until Flynn’s sentencing memo was filed, the government was in favor of the best possible outcome, no jail time. Now, the judge has seemingly called that recommendation into doubt.

Robert Stahl, and his firm, Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes. Founder Robert G. Stahl is recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success. To contact the firm, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at rgs@sgdefenselaw.com.