WASHINGTON — Michael Flynn, President Donald Trump’s first national security adviser, is seeking to have his guilty plea thrown out for lying to the FBI during the Russia investigation — a risky legal strategy that could irritate the federal judge who will sentence him next month.
In seeking to dismiss the case, Flynn’s lawyers have asked U.S. District Judge Emmet G. Sullivan to hold prosecutors in contempt of court for withholding evidence. They also have embraced what appear to be unrelated conspiracy theories pushed by Trump and his allies to discredit federal investigators.
Legal experts said it is clear from court filings that the real audience for Flynn’s moves is not Sullivan, a no-nonsense judge who has little patience for defendants seeking to duck responsibility for their crimes. It is the president who named Flynn national security adviser after the 2016 election — and then sacked him after less than a month on the job.
“Flynn is playing to Trump,” said James Cohen, a law professor at Fordham University in New York. “You don’t evaluate these arguments based on them making sense. You evaluate them on the basis of whom they are making happy. That would be Trump. Flynn wants a pardon.”
Flynn’s scheduled sentencing on Dec. 18 represents a legal denouement of sorts in former special counsel Robert S. Mueller III’s sprawling investigation of Russia’s interference in the 2016 campaign. He pleaded guilty in December 2017.
Flynn was the only member of the Trump White House charged in the probe, though his case did not involve allegations that he colluded with Russia to help Trump get elected.
Mueller successfully prosecuted Trump’s campaign chairman, Paul Manafort, and deputy campaign chairman, Rick Gates, among others, on charges ranging from tax fraud to lying to investigators. He also charged 25 Russian military intelligence operatives and others with stealing Democratic Party emails and sowing disinformation on social media.
Mueller ultimately concluded that the Trump campaign welcomed Russian help in the 2016 campaign but did not engage in a criminal conspiracy with the Kremlin.
Flynn pleaded guilty to lying about his conversations with Sergey Kislyak, Russia’s ambassador to the U.S., in the weeks before Trump’s inauguration in January 2017. He falsely denied to FBI agents that he told Kislyak that Russia should not retaliate after the outgoing Obama administration enacted sanctions to punish Moscow for meddling in the election.
When Russian President Vladimir Putin announced that Moscow would not hit back with sanctions, Kislyak called Flynn to tell him that was in response to his request, according to court documents.
On Feb. 13, 2017, Flynn resigned after the White House learned he had lied to Vice President Mike Pence about those conversations. He became the first in a string of high-profile departures from the Trump administration as the Mueller probe and other scandals have swirled around the White House.
It was a staggering downfall for a former Army lieutenant general who helped lead efforts to strengthen military intelligence operations in Iraq and Afghanistan, and later led the Pentagon’s Defense Intelligence Agency.
After pleading guilty, Flynn cooperated extensively with Mueller’s team, court papers show.
Citing that assistance, prosecutors urged Sullivan last year to spare Flynn prison time. Under federal sentencing guidelines, which judges use to help mete out appropriate punishment, he faces no more than six months in jail.
In June, two months after Mueller had issued his final report, Flynn abruptly changed tactics.
He fired his lawyers who had negotiated the guilty plea and replaced them with a team led by Sidney Powell, a pro-Trump attorney who frequently appears on conservative television and radio shows.
In seeking to toss the case and obtain more evidence, Powell and her colleagues in recent months have accused the FBI of plotting to trap Flynn. Agents orchestrated an “ambush-interview,” Powell wrote, and tricked her client “into making statements they could allege as false.”
Flynn’s new lawyers have also savaged the credibility of a former FBI agent, Peter Strzok, who had helped question Flynn. Strzok was fired in August 2018 after Justice Department officials uncovered private anti-Trump texts he had exchanged with an FBI employee with whom he was having an affair.