Replies

Case 1:17-cr-00232-EGS Document 46 Filed 12/04/18 Page 1 of 7

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA :
:
v. : Crim. No. 17-232 (EGS)
:
MICHAEL T. FLYNN, :
: Sentencing: December 18, 2018
:
Defendant. :

GOVERNMENT’S MEMORANDUM IN AID OF SENTENCING

The United States of America, by and through Special Counsel Robert S. Mueller, III,respectfully submits this memorandum in aid of sentencing defendant Michael T. Flynn. On December 1, 2017, the defendant pleaded guilty to one count of making materially false statements to the Federal Bureau of Investigation (“FBI”), in violation of 18 U.S.C. § 1001(a).

As calculated by the United States Probation Office, the defendant’s applicable Total Offense Level is 4, Criminal History Category I, resulting in an advisory guideline range of 0-6 months.

That offense level and guideline range, however, do not account for a downward departure pursuant to Section 5K1.1 of the United States Sentencing Guidelines reflecting the defendant’s substantial assistance to the government, which the government has moved for contemporaneously. Given the defendant’s substantial assistance and other considerations set forth below, a sentence at the low end of the guideline range—including a sentence that does not impose a term of incarceration—is appropriate and warranted.

The nature of the offense and the defendant’s history and characteristics are set forth below. See 18 U.S.C. § 3553(a). In addition, the Addendum to this memorandum describes the

-1-
Case 1:17-cr-00232-EGS Document 46 Filed 12/04/18 Page 2 of 7

defendant’s assistance to the government. Because the Addendum includes sensitive

information about ongoing investigations, the government is seeking to partially seal the

Addendum, and has filed publicly a redacted version of the document that excludes the sensitive

information.

I. Nature of the Offense: False Statements to the Department of Justice

The defendant’s offense is serious. As described in the Statement of Offense, the

defendant made multiple false statements, to multiple Department of Justice (“DOJ”) entities, on

multiple occasions. See Statement of Offense, United States v. Flynn, No. 17-cr-232 (D.D.C.

Dec. 1, 2017) (Doc. 4) (“SOF”).

The first series of false statements occurred during an interview with the FBI on January

24, 2017. At the time of the interview, the FBI had an open investigation into the Russian

government’s efforts to interfere in the 2016 presidential election, including the nature of any

links or coordination between the Russian government and individuals associated with the

campaign of President Donald J. Trump. Days prior to the FBI’s interview of the defendant, the

Washington Post had published a story alleging that he had spoken with Russia’s ambassador to

the United States on December 29, 2016, the day the United States announced sanctions and

other measures against Russia in response to that government’s actions intended to interfere with

the 2016 election (collectively, “sanctions”). See David Ignatius, Why did Obama Dawdle on

Russia’s hacking?, WASH. POST (Jan. 12, 2017). The Post story queried whether the defendant’s

actions violated the Logan Act, which prohibits U.S. citizens from corresponding with a foreign

government with the intent to influence the conduct of that foreign government regarding

disputes with the United States. See 18 U.S.C. § 953. Subsequent to the publication of the

-2-
Case 1:17-cr-00232-EGS Document 46 Filed 12/04/18 Page 3 of 7

Post article and prior to the defendant’s FBI interview, members of President-Elect Trump’s

transition team publicly stated that they had spoken to the defendant, and that he denied speaking

to the Russian ambassador about the sanctions. See, e.g., Face the Nation transcript January 15,

2017: Pence, Manchin, Gingrich, CBS NEWS (Jan. 15, 2017).

When the FBI interviewed the defendant on January 24 about his interactions with the

Russian ambassador, the defendant falsely stated that he did not ask the Russian ambassador to

refrain from escalating the situation in response to the sanctions, and falsely disclaimed any

memory of his subsequent conversation with the ambassador in which the ambassador stated that

Russia had acceded to the defendant’s request. See SOF at ¶ 3. In addition, the defendant made

false statements to the FBI about his prior interactions with the Russian government in

December 2016 concerning a pending United Nations Security Council resolution. See id. at ¶ 4.

The defendant’s false statements to the FBI about (i) his contacts with a Russian government

emissary, (ii) the requests he conveyed to the Russian government through that emissary, and

(iii) Russia’s response to those requests, were material to the FBI’s investigation into the nature

of any links or coordination between the Russian government and individuals associated with the

Trump campaign.

The defendant made a second series of false statements to the DOJ concerning his

contacts with the Republic of Turkey. Specifically, on March 7, 2017, the defendant made

materially false statements in multiple documents that he filed pursuant to the Foreign Agents

Registration Act (“FARA”) pertaining to a project he and his company had performed for the

principal benefit of the Republic of Turkey (“Turkey project”). Id. at ¶ 5. In those filings, the

defendant disclosed that he and his company began work on the Turkey project in August 2016,

-3-
Case 1:17-cr-00232-EGS Document 46 Filed 12/04/18 Page 4 of 7

soon after a coup d’état was attempted in Turkey. Ultimately, the project lasted approximately

three months and the defendant and his company were paid $530,000 for their work.

The FARA filings omitted the material fact that officials from the Republic of Turkey

provided supervision and direction over the Turkey project. See id. At the time, the defendant

was a national security advisor and surrogate for the Trump campaign who opined publicly on

foreign policy and national security issues. The defendant’s business relationship with the

Republic of Turkey was thus exactly the type of information FARA was designed to ensure was

within the public sphere. The purpose of FARA is to ensure the United States government and

the United States people are informed of the identity of foreign entities—in this case a foreign

government—behind information or propaganda being used to influence public opinion, policy,

and laws.

On election day in 2016, the defendant published an op-ed for the Turkey project that

called for the removal of a cleric residing in the United States whom the President of Turkey

blamed for the failed coup in that country. See Michael T. Flynn, Our ally Turkey is in crisis and

needs our support, THE HILL (Nov. 8, 2016). The cleric’s responsibility for the coup attempt was

a subject of great debate, and the defendant’s op-ed about the cleric’s role was valuable to the

Republic of Turkey’s efforts to shape public opinion. The defendant falsely represented in his

FARA filings that the op-ed was written at his own initiative, as opposed to for the Turkey

project and the Republic of Turkey, and thus again deprived the public of the very transparency

FARA was designed to ensure. See SOF at ¶ 5. The defendant’s false statements impeded the

ability of the public to learn about the Republic of Turkey’s efforts to influence public opinion

-4-
Case 1:17-cr-00232-EGS Document 46 Filed 12/04/18 Page 5 of 7

about the failed coup, including its efforts to effectuate the removal of a person legally residing

in the United States.

II. History and Characteristics of the Defendant

The defendant’s history and characteristics present mitigating and aggravating

circumstances. As detailed in the Presentence Investigation Report (“PSR”), the defendant’s

military and public service are exemplary. He served in the military for over 33 years, including

five years of combat duty, led the Defense Intelligence Agency, and retired as a 3-star Lieutenant

General. See PSR (Doc. 44) at ¶¶ 70-71. The defendant’s record of military and public service

distinguish him from every other person who has been charged as part the SCO’s investigation.

However, senior government leaders should be held to the highest standards. The defendant’s

extensive government service should have made him particularly aware of the harm caused by

providing false information to the government, as well as the rules governing work performed on

behalf of a foreign government.

The defendant deserves credit for accepting responsibility in a timely fashion and

substantially assisting the government. As described in the Addendum, shortly after the SCO

reached out to the defendant to seek his cooperation, the defendant accepted responsibility for

his unlawful conduct and began cooperating with the government.

-5-
Case 1:17-cr-00232-EGS Document 46 Filed 12/04/18 Page 6 of 7

III. Conclusion

For the foregoing reasons, as well as those contained in the government’s Addendum and

Motion for Downward Departure, the government submits that a sentence at the low end of the

advisory guideline range is appropriate and warranted.

Respectfully submitted,

ROBERT S. MUELLER, III
Special Counsel

By: /s/
Brandon L. Van Grack
Zainab N. Ahmad
Senior Assistant Special Counsels
Special Counsel’s Office
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, D.C. 20530
(202) 616-0800

-6-
Case 1:17-cr-00232-EGS Document 46 Filed 12/04/18 Page 7 of 7

CERTIFICATE OF SERVICE

I, Brandon L. Van Grack, certify that I caused to be served a copy of the foregoing by

electronic means on counsel of record for defendant Michael T. Flynn on December 4, 2018.

/s/
Brandon L. Van Grack
U.S. Department of Justice
Special Counsel’s Office
950 Pennsylvania Avenue NW
Washington, D.C. 20530
Telephone: (202) 616-0800

Attorney for the United States of America

-7-
Case 1:17-cr-00232-EGS Document 46-1 Filed 12/04/18 Page 1 of 6
Case 1:17-cr-00232-EGS Document 46-1 Filed 12/04/18 Page 2 of 6
Case 1:17-cr-00232-EGS Document 46-1 Filed 12/04/18 Page 3 of 6
Case 1:17-cr-00232-EGS Document 46-1 Filed 12/04/18 Page 4 of 6
Case 1:17-cr-00232-EGS Document 46-1 Filed 12/04/18 Page 5 of 6
Case 1:17-cr-00232-EGS Document 46-1 Filed 12/04/18 Page 6 of 6