A judge has rejected federal prosecutors’ last-minute attempts to name former national security adviser and retired Lt. Gen. Michael Flynn a co-conspirator in a Turkish lobbying scheme.
Judge Anthony Trenga on Tuesday decided against the prosecution’s attempt to designate Flynn a co-conspirator in the case against his former business partner, citing lack of evidence, according to court documents obtained by the Daily Caller.
“The United States at this point has not presented or proffered evidence sufficient to establish by a preponderance of the evidence a conspiracy for the purposes of admitting against the Defendant the hearsay statements of alleged co-conspirators pursuant to Fed. R. Evid. 801(d)(2)(E),” Trenga wrote, noting a federal rule that prohibits new evidence from being introduced during an ongoing criminal trial.
The information was revealed when Judge Trenga ordered all court records unsealed on Tuesday, Fox News reported.
Prosecutors wanted Flynn classified as a co-conspirator in order to submit hearsay evidence. They decided suddenly last week that Flynn would not be testifying as a part of their trial plan in the case against his former business partner, Bijan Kian, according to a court filing on July 3.
Flynn’s legal team criticized the prosecution’s move and attempt to re-characterize Flynn after months of insisting he was their key cooperating witness. Prosecutors even specifically said in June that they did not consider Flynn a co-conspirator.
“The government’s reversal also sounds an alarm of potential retaliation and may have ramifications for Mr. Flynn beyond this trial,” said one of Flynn’s lawyers, Jesse Binnall, said in a court document.
Flynn’s legal team also claimed that the prosecution wanted him to lie during his testimony and admit that he knowingly falsified information on his Foreign Agents Registration Act (FARA) documents while working with Kian for the government of Turkey.
“Flynn hired the FARA (Foreign Agents Registration Act) experts and followed the law,” another of Flynn’s attorneys, Sidney Powell, told CNN on Tuesday. “Gen. Flynn is still cooperating.”
Not testifying could spell uncertainty for Flynn’s future, as his cooperation with the prosecution was a term of the plea deal he made in 2017 when he admitted to lying to investigators.
“Mr. Flynn delayed his sentencing before Judge Sullivan to continue his cooperation here, for whatever benefit — if any — that might have in his sentencing, but he could have chosen not to cooperate further, proceeded to sentencing, and be done with all of it. The government should not be allowed to place him in a worse position now and name him as a co-conspirator in this proceeding — for the feeding-frenzy of the press or for any future use it might contemplate,” his attorneys wrote in court filings.
Prosecutors could still characterize Flynn an un-indicted co-conspirator if they provide evidence during the trial, which begins Monday.