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Michael Flynn Seeks to Withdraw Guilty Plea, Citing ‘Breach’ of Plea Deal

Former national security adviser Michael Flynn arrives for his sentencing hearing at U.S. District Court in Washington, D.C., December 18, 2018. (Jonathan Ernst/Reuters )

Attorneys for General Michael Flynn filed on Tuesday night to withdraw Flynn’s 2017 guilty plea, after prosecutors reversed course last week and recommended jail time for the former national security adviser.

“The prosecutor seeks to rewrite history and send Mr. Flynn to prison,” Flynn’s motion reads. “This about-face places the government in breach of the plea agreement.”

Flynn pleaded guilty in December 2017 of lying to the FBI regarding his contacts with Russian ambassador Sergey Kislyak, and the DOJ initially recommended no jail time in recognition of his cooperation. But in October, Flynn’s defense team shifted gears and alleged that the FBI had tampered with notes from Flynn’s original FBI interview and deliberately withheld exculpatory information from Flynn in what amounted to a set-up.

In November, the Department of Justice admitted that it had incorrectly attributed notes to former FBI Agent Peter Strzok, who was one of two agents to conduct the interview, but Judge Emmett Sullivan threw out the argument that Flynn had been coerced into a guilty plea.

“The sworn statements of Mr. Flynn and his former counsel belie his new claims of innocence and his new assertions that he was pressured into pleading guilty to making materially false statements to the FBI,” Sullivan wrote.

Ahead of Flynn’s sentencing, the DOJ reversed course from a 2018 agreement and recommended that Flynn face up to six months in prison, in accordance with applicable sentencing guidelines.

“The sentence should adequately deter the defendant from violating the law, and to promote respect for the law,” a sentencing memo read. “It is clear that the defendant has not learned his lesson. He has behaved as though the law does not apply to him, and as if there are no consequences for his actions.”

Flynn’s defense maintains his innocence and, in defending the late guilty plea withdrawal, the attorneys cite a 2009 Supreme Court decision, Puckett v. United States, in which the defense counsel sought to withdraw its guilty plea after the trial.

“It would constitute ineffective assistance of counsel to fail to move to withdraw his plea now in light of the government’s breach and change in sentencing recommendation,” Flynn’s motion to withdraw reads. “Mr. Flynn has cooperated with the government in good faith for two years. He gave the prosecution his full cooperation. He held nothing back. He endured massive, unnecessary, and frankly counterproductive demands on his time, his family, his scarce resources, and his life. The same cannot be said for the prosecution which has operated in bad faith from the inception of the ‘investigation’ and continues relentlessly through this specious prosecution.”

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