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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v.
Crim. No. 17-232 (EGS)

MICHAEL T. FLYNN,
Defendant

UNITED STATES’ SUPPLEMENTAL MEMORANDUM IN AID OF SENTENCING
The United States of America, by and through its attorney, the United States Attorney for
the District of Columbia, hereby respectfully submits its Supplemental Memorandum in Aid of
Sentencing for defendant Michael T. Flynn. In its initial sentencing memorandum, the
government recommended that the defendant receive a sentence at the low end of the Guidelines
range. See Government’s Memorandum in Aid of Sentencing, United States v. Flynn, No. 17-cr232 (D.D.C. Dec. 4, 2018) (Doc. 46) (“Gov’t Sent’g Mem.”). At that time, the government
represented that the defendant had accepted responsibility, and it filed a motion for a downward
departure pursuant to Section 5K1.1 of the United States Sentencing Guidelines (“U.S.S.G.” or
“Guidelines”).
At the initial sentencing hearing in December 2018, the Court raised concerns about
proceeding to sentencing without “fully understanding the true extent and nature” of the
defendant’s assistance. Hearing Transcript at 31, United States v. Flynn, No. 17-cr-232 (D.D.C.
Dec. 18, 2018) (“12/18/2018 Hearing Tr.”). Upon a motion of the defendant predicated on a
desire to “complete his cooperation” in the case of United States v. Bijan Rafiekian, No. 18-cr457, in the U.S. District Court for the Eastern District of Virginia (“EDVA”), the Court
continued his sentencing. 12/18/2018 Hearing Tr. at 46-47.

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The defendant is now scheduled to be sentenced almost exactly three years from the date
of his primary criminal conduct – lying to the FBI – and the intervening years have included
periods where the defendant has sought to assist and aid the government, and periods where the
defendant has sought to thwart the efforts of the government to hold other individuals,
principally Bijan Rafiekian, accountable for criminal wrongdoing. Given the serious nature of
the defendant’s offense, his apparent failure to accept responsibility, his failure to complete his
cooperation in – and his affirmative efforts to undermine – the prosecution of Bijan Rafiekian,
and the need to promote respect for the law and adequately deter such criminal conduct, the
government recommends that the court sentence the defendant within the applicable Guidelines
range of 0 to 6 months of incarceration.
I.

Background
On December 1, 2017, the defendant entered a plea of guilty to a single count of

“willfully and knowingly” making material false statements to the Federal Bureau of
Investigation (“FBI”) regarding his contacts with the Government of Russia’s Ambassador to the
United States (“Russian Ambassador”) during an interview with the FBI on January 24, 2017
(“January 24 interview”), in violation of 18 U.S.C. § 1001(a)(2). See Information, United States
v. Flynn, No. 17-cr-232 (D.D.C. Nov. 30, 2017) (Doc. 1); Statement of Offense at ¶¶ 3-4, United
States v. Flynn, No. 17-cr-232 (D.D.C. Dec. 1, 2017) (Doc. 4) (“SOF”). In addition, at the time
of his plea, the defendant admitted making other material false statements and omissions in
multiple documents that he filed on March 7, 2017, with the Department of Justice (“DOJ”)
pursuant to the Foreign Agents Registration Act (“FARA”), which pertained to his work for the
principal benefit of the Government of Turkey. See SOF at ¶ 5. These additional material false
statements are relevant conduct that the Court can and should consider in determining where
within the Guidelines range to sentence the defendant.
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The defendant was initially scheduled to be sentenced by this Court on December 18,
2018, even though the defendant had not completed his cooperation. The parties sought to hold
the hearing at that time because the defendant had expressed a desire to be sentenced as soon as
possible. The government assented to his request because the sole outstanding area of
cooperation pertained to the Rafiekian case, and the defendant had already testified under oath
before a federal grand jury in that matter. The government expected that, in the event the
Rafiekian case went to trial, the defendant would testify at trial consistent with that grand jury
testimony and the Statement of Offense.
In anticipation of that hearing, the parties filed sentencing memoranda. As part of its
submission, the government requested that the Court grant a downward departure for providing
substantial assistance to the government. The government provided a detailed accounting of the
defendant’s assistance to the government in several ongoing investigations, including the
investigation by the Special Counsel’s Office (“SCO”). See Addendum to Government’s
Memorandum in Aid of Sentencing, United States v. Flynn, No. 17-cr-232 (D.D.C. Dec. 19,
2019) (Doc. 146) (“Addendum”). Notably, only the assistance he had provided in the Rafiekian
case was deemed “substantial.” Id. at 2. The government recognized that “some of that benefit
[of the defendant’s substantial assistance] may not be fully realized at this time,” but it
represented that the government and the defendant “agree that sentencing at this time is
nonetheless appropriate because sufficient information is available to allow the Court to
determine the import of the defendant’s assistance to his sentence.” Id. at 2. In addition to
asking the Court to credit the defendant with providing substantial assistance, the government
recommended that the defendant receive credit for accepting responsibility. For the reasons
detailed below, the government now withdraws both requests.

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The defendant was not sentenced at the December 18 hearing. The Court first engaged in
an “extension . . . of the plea colloquy.” Hearing Transcript at 5, United States v. Flynn, No. 17cr-232 (D.D.C. Dec. 18, 2018) (“12/18/2018 Hearing Tr.”). Based upon the defendant’s
responses, the Court found that the defendant entered his earlier guilty plea while “competent
and capable.” Id. at 16. The Court then engaged in a colloquy with the government, during
which the government represented that “based on the totality of the assistance that the defendant
had provided at that point,” it believed that a motion for a downward departure based on his
substantial assistance was warranted. Id. at 27. The government further stated that based not
only on “the assistance he provided, but the nature of the investigations . . . , that the defendant
had provided the vast majority of cooperation that could be considered,” concluding that the
Court “was in a position to consider the vast majority of not just the cooperation, but the
potential benefit of that cooperation.” Id. (emphasis added). The Court inquired whether the
defendant could have been charged as a co-defendant in the Rafiekian case, and the government
affirmed that the defendant could have been charged with various offenses in connection with his
false statements in his FARA filings, consistent with his Statement of Offense. Id. at 28.
With respect to sentencing, the Court reminded the defendant that he could be sentenced
to a term of imprisonment, and reminded the defendant of the government’s representation that
some of the benefit of his cooperation “may not be fully realized at this time.” Id. at 30. The
Court then asked whether the defendant therefore wished to fully complete his cooperation with
the government in order to improve potentially his sentence. Id. at 30-34, 44. The defendant
noted that any remaining cooperation consisted of testifying at the Rafiekian trial, and requested
that the Court continue the sentencing hearing. Id. at 46-47.
It is within the government’s sole discretion to determine whether the defendant has
“substantially assisted” the government. In light of the complete record, including actions
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subsequent to December 18, 2018, that negate the benefits of much of the defendant’s earlier
cooperation, the government no longer deems the defendant’s assistance “substantial.”
Based on the defendant’s conduct since the time of the December 18, 2018, sentencing
hearing, the government also does not believe the defendant should receive credit for acceptance
of responsibility. Indeed, the government has reason to believe, through representations by the
defendant’s counsel, that the defendant has retreated from his acceptance of responsibility in this
case regarding his lies to the FBI. For that reason, the government asks this Court to inquire of
the defendant as to whether he maintains those apparent statements of innocence or whether he
disavows them and fully accepts responsibility for his criminal conduct.
II.

Factual Summary of the Defendant’s Conduct Relevant to Sentencing
The underlying facts in this case should not be in dispute. As the Court has noted, the

defendant admitted to the underlying criminal conduct “when he entered his guilty pleas in this
case.” See Memorandum Opinion at 4, United States v. Flynn, No. 17-cr-232 (D.D.C. Dec. 16,
2019) (Doc. 144) (“Mem. Opinion”). At sentencing, just one year ago, the defendant reiterated
that he “d[id] not take issue” with the government’s description of that conduct. See Defendant’s
Memorandum in Aid of Sentencing at 7, United States v. Flynn, No. 17-cr-232 (D.D.C. Dec. 11,
2018) (Doc. 50) (“Def. Sent’g Mem.”). In his recent filings and statements, however, the
defendant has disputed that conduct and the underlying facts. Accordingly, the government
below highlights relevant facts for purposes of sentencing. As described in the Statement of
Offense, this case is about multiple false statements that the defendant made to various DOJ
entities. The defendant’s first series of false statements occurred during an interview with the
FBI about his communications with the Russian Ambassador. The defendant also made a second
series of false statements in his FARA filings that pertain to his work for the Government of
Turkey.
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i.

False Statements to the FBI About Communications with the Russian Ambassador

In July 2016, the FBI opened an 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 then-candidate
Donald J. Trump (“FBI counterintelligence investigation”). The inquiry included examining
relationships between individuals associated with the campaign and the Russian government, as
well as identifying actions of such individuals that would have benefited the Russian
government. During the presidential election, the defendant served as a surrogate and national
security advisor for the campaign of Donald J. Trump. See SOF at ¶ 1. After the election, the
defendant became a senior member of the President-Elect’s transition team and was chosen to
become the National Security Advisor. Id.
On December 28, 2016, then-President Barack Obama signed an executive order that
implemented a series of sanctions against Russia in response to that government’s actions to
interfere with the 2016 presidential election; concurrently, the Obama Administration expelled
35 Russian government officials and closed two Russian government-owned compounds in the
United States (collectively, “sanctions”). See SOF at ¶ 3; SPECIAL COUNSEL ROBERT S.
MUELLER III, REPORT ON THE INVESTIGATION INTO RUSSIAN INTERFERENCE IN THE 2016
PRESIDENTIAL ELECTION (Mar. 2019) (“Special Counsel Report”), Vol. I. at 168-69. The U.S.
Intelligence Community assessed that Russian President Vladimir Putin “ordered an influence
campaign in 2016 aimed at the US presidential election[,]” with a goal of “undermin[ing] public
faith in the US democratic process.” INTELLIGENCE CMTY. ASSESSMENT, “ASSESSING RUSSIAN
ACTIVITIES AND INTENTIONS IN RECENT US ELECTIONS,” at ii (Jan. 6, 2017).
That evening, the Russian Ambassador texted the defendant, “can you kindly call me
back at your convenience.” Special Counsel Report, Vol. I. at 169. At the time, the defendant
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was on vacation, while multiple senior officials from the transition team were with PresidentElect Trump in Palm Beach, Florida. See SOF at ¶ 3. When the sanctions were announced
publicly on December 29, 2016, the defendant texted a transition team member: “Russian
AMBO reaching out to me today.” Special Counsel Report, Vol. I. at 170. The defendant then
spoke to K.T. McFarland, the incoming Deputy National Security Advisor who was in Palm
Beach, to discuss what to communicate to the Russian Ambassador about the sanctions. That
conversation included a discussion that the transition team did not want Russia to escalate the
situation, and that the defendant would relay such a message to the Russian Ambassador. See
SOF at ¶ 3. Immediately after speaking with McFarland, the defendant spoke with the Russian
Ambassador and discussed the sanctions, among other topics. Id. With respect to the sanctions,
the defendant requested that Russia not escalate the situation and only respond in a reciprocal
manner. Id. After the conversation, the defendant reported to McFarland his discussion of
sanctions with the Russian Ambassador. Id.
The next day, Putin released a statement that Russia would not take retaliatory measures
in response to the sanctions at that time. Id. On December 31, 2016, the Russian Ambassador
called the defendant and told him the request had been received at the highest levels and that
Russia had chosen not to retaliate to the sanctions in response to the request. See Special
Counsel Report, Vol. I. at 171. Later that day, the defendant spoke with McFarland and relayed
his conversation with the Russian Ambassador. See SOF at ¶ 3.
In the days that followed, the Russian government’s actions to interfere in the election
remained a significant topic for the transition team and the public. On January 6, 2017, the U.S.
Intelligence Community briefed the President-Elect and members of his national security team—
including the defendant—on a joint assessment that concluded with high confidence that Russia

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had interfered in the election. See Special Counsel Report, Vol. II. at 27. A declassified version
of the assessment was publicly released that same day.
A few days later, on January 12, 2017, the Washington Post (“Post”) published a story
alleging that the defendant had spoken with the Russian Ambassador on December 29, 2016, the
day the sanctions were announced. 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
had undercut the sanctions and violated the Logan Act. In response, the defendant had K.T.
McFarland contact the Post on January 13 and convey false information about his
communications with the Russian Ambassador. See Government’s Reply to Defendant’s
Memorandum in Aid of Sentencing at 2, United States v. Flynn, No. 17-cr-232 (D.D.C. Dec. 14,
2018) (Doc. 56) (“Gov’t Reply to Def. Sent’g Mem.”).
Over the next two weeks, the defendant repeated the same false statements about the
sanctions to multiple members of the transition team, including Vice President-Elect Michael
Pence, who repeated those false statements on national television.1 On January 23, 2017, the
White House Press Secretary recounted that he had recently spoken with the defendant, and the
defendant had again denied speaking to the Russian Ambassador about sanctions. See White
House Briefing by Sean Spicer – Full Transcript, Jan. 23, 2017, CBS NEWS (Jan. 24, 2017).
The following day, as part of the FBI counterintelligence investigation, the FBI
interviewed the defendant about his conversations with the Russian Ambassador. During the

                                                            
1

 
See, e.g., Face the Nation transcript January 15, 2017: Pence, Manchin, Gingrich, CBS
NEWS (Jan. 15, 2017) (Vice President Pence recounting that defendant told him he did not
discuss sanctions with the Russian ambassador); Meet The Press 01/15/17, NBC NEWS (Jan. 15,
2017) (Priebus recounting that he had talked to the defendant and “[t]he subject matter of
sanctions or the actions taken by the Obama [sic] did not come up in the conversation [with the
Russian ambassador]”).
 

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interview, the defendant disclosed some communications that he had had with Russian
government officials, but omitted his communications with the Russian Ambassador about the
sanctions. See Notice (Official Record of January 24 Interview Report), United States v. Flynn,
No. 17-cr-232 (D.D.C. June 6, 2019) (Doc. 85). The defendant also omitted references to his
communications with the Russian Ambassador in December 2016 about requesting that Russia
vote against or delay a United Nations Security Council resolution. Id. The defendant’s request
was contrary to the position of the then-current administration, and was relevant to the FBI’s
investigation. When the interviewing agents attempted to refresh the defendant’s recollection
about his conversations with the Russian Ambassador about the sanctions, the defendant
continued to deny that such conversations had occurred. Id. It was material to the FBI’s
counterintelligence investigation to know the full extent of the defendant’s communications with
the Russian Ambassador, and why he lied to the FBI about those communications.
On February 8, 2017, the defendant spoke to the Post, and again denied that he had
discussed sanctions with the Russian Ambassador. The next day, the Post reported that U.S.
officials stated that the defendant had discussed sanctions with the Russian Ambassador. See
Greg Miller, et al., National security adviser Flynn discussed sanctions with Russian
ambassador, despite denials, officials say, WASH. POST (Feb. 9, 2017). The defendant then
changed his story, and started claiming that “he couldn’t be certain that the topic [of sanctions]
never came up.” Id. Four days later, on February 13, 2017, President Trump asked for the
defendant’s resignation, and the defendant complied.
ii.

False Statements to the DOJ About his Work for the Government of Turkey

The defendant’s false statements to the DOJ pertain to work that he and his company, the
Flynn Intel Group (“FIG”), performed for the Government of Turkey. On July 15, 2016, a coup
d’état was attempted in Turkey. The Government of Turkey maintained that a cleric living in the
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United States, Fethullah Gulen, was responsible for the failed coup. Just twelve days later, the
defendant and Rafiekian (Vice Chairman of FIG) began exchanging emails with Ekim Alptekin,
a Turkish national with connections to high-level Government of Turkey officials, about
assisting the Government of Turkey’s effort to obtain custody of Gulen. See Attachment 1
(selected trial exhibits from United States v. Bijan Rafiekian, No. 18-cr-457, 2019 WL 4647254
(E.D. Va. Sept. 24, 2019)), Ex. 8B.2 The decision to hire the defendant and his company was
based in part on the defendant’s work for and relationship with then-presidential candidate
Trump.
The defendant, Rafiekian, and Alptekin devised a campaign pertaining to Gulen, which
they called the “Truth” campaign, with the direction, support, and authorization of the
Government of Turkey. For example, on August 8, 2016, Alptekin reported that he had just had
a “long meeting with [the Turkish] Minister of Economy upon the referral of [Turkish Minister
of Foreign Affairs Mevlut] Cavusoglu. I explained what we can offer. He agreed to discuss in
general lines at the council of ministers today and subsequently with [Turkish Prime Minister
Binali] Yildirim in more detail.” See Attachment 1, Ex. 14A. Just two days later, Alptekin
informed the defendant and Rafiekian that he had just “finished in Ankara after several meetings
today with Min of Economy and [Minister of Foreign Affairs] Cavusoglu. I have a green light to
discuss confidentiality, budget and the scope of the contract.” See Attachment 1, Ex. 16. On
September 8, 2016, Alptekin reported that he “will send the agreement // just left [Prime
Minister]’s office.” See Attachment 1, Ex. 67J. That same day, the defendant and Alptekin
signed a contract that would pay FIG $600,000 for 90 days of work. See Attachment 1, Ex. 58.

                                                            

Exhibits in Attachment 1 are not consecutively numbered, and are referred to by the
exhibit number used in the Rafiekian trial.
2

  

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One of the first actions that the defendant and Rafiekian took after signing the contract
and receiving payment was attending a meeting in New York City with Turkish ministers. On
September 19, 2016, the defendant, Rafiekian, Alptekin, and two other FIG associates met with
Turkish Minister of Foreign Affairs Cavusoglu and the Turkish Minister of Energy. See In re
Grand Jury, Testimony of Michael T. Flynn (June 26, 2018) (“Grand Jury Tr.”) at 22-25
(Attachment 2); Attachment 1, Ex. 61. The conversation centered on Gulen and the Government
of Turkey’s efforts to obtain custody of Gulen. See, e.g., Attachment 1, Ex. 26B (talking points
for the meeting).
After receiving feedback from those Turkish officials, work on the project began.3
During September and October 2016, members of the team lobbied a member of Congress, a
Congressional staffer, and a state government official about Gulen, including the prospect of
holding Congressional hearings on Gulen. See Attachment 1, Exs. 30A, 30B, 61. The team also
discussed publishing an op-ed about Gulen. During a meeting towards the end of the project, on
November 2, 2016, Alptekin expressed frustration with the team’s lack of progress. In response,
later that day, Rafiekian emailed Alptekin a draft of an op-ed that urged the United States to
extradite Gulen. See Attachment 1, Ex. 45A. In that email, Rafiekian wrote, “A promise made
is a promise kept.” Id. The next day, Rafiekian emailed the defendant that Rafiekian had asked
an editor to “review and edit my 1000 word draft to make sure it is tight before I send it out to
you.” Attachment 1, Ex. 47. Four days later, on November 8, 2016, the day of the presidential

                                                            

The Government of Turkey provided supervision and direction throughout the project.
For example, the defendant sent a text message on October 22, 2016, explaining that he had just
talked to Alptekin who thought FIG’s social media analysis was “worth talking to [Minister of
Foreign Affairs Cavusoglu] about as well as all the other talking points.” Attachment 1, Ex. 40.
The district judge in Refiekian ruled that this exhibit was not admissible as a coconspirator
statement, based in part on the defendant’s decision to intervene against the government, in a
legal, evidentiary argument. See infra, at 24-25.
3

  

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election, the op-ed, credited as authored by the defendant, was published in The Hill. See
Attachment 1, Ex. 50; see also Grand Jury Tr. at 31-32. The op-ed blamed Gulen for the
attempted coup and urged the U.S. government to deny him refuge in the United States. At no
point during FIG’s lobbying efforts or in the op-ed did the defendant disclose his affiliation with
the Government of Turkey.
Following the publication of the defendant’s op-ed, the FARA Unit of the DOJ sent the
defendant a letter requesting information in order to determine whether the defendant had an
obligation to register as an agent of a foreign government under FARA. See Attachment 1, Ex.
90. From December 2016 to March 2017, the defendant worked with attorneys from the law
firm of Covington & Burling (“Covington”) to determine whether he and his company had an
obligation to register and to draft such registration documents. On March 7, 2017, the defendant
and Rafiekian filed multiple documents with the DOJ pursuant to FARA. See Attachment 1, Ex.
56 (Registration Statement); Ex. 58 (Exhibits A and B); Ex 61 (Supplemental Statement); Ex. 64
(Short Form Registration Statement – Flynn); Ex. 65 (Short Form Registration Statement –
Rafiekian). All but one of the filings was signed by the defendant. Id.
The FARA filings contained multiple false statements and made at least one material
omission, including:
1.

The filings affirmatively stated that FIG did not know whether or the
extent to which the Republic of Turkey was involved in the Turkey
project. See Attachment 1, Ex. 58 (Registration Statement, Exhibit A).

2.

The filings omitted that officials from the Republic of Turkey provided
supervision and direction over the Turkey project. See, e.g., Attachment
1, Ex. 56 (Registration Statement, Para. 7 & 8).

3.

The filings affirmatively stated that FIG “understood the engagement to be
focused on improving U.S. business organizations’ confidence regarding
doing business in Turkey.” See Attachment 1, Ex. 61 (Supplemental
Statement, Attachment).
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4.

The filings affirmatively stated that the defendant published the op-ed “on
his own initiative;” and it was not undertaken at the direction or control of
a foreign principal. See Attachment 1, Ex. 61 (Supplemental Statement,
Paragraph 13).

These false statements were described in the Statement of Offense, and at the time of his initial
guilty plea, the defendant admitted under oath that these statements were material and false. See
SOF at ¶ 5.
The evidence and the defendant’s sworn testimony before the grand jury in the Rafiekian
case demonstrate overwhelmingly that these three affirmative statements are false, and that the
omitted statement is true. With respect to #1 and #2, the defendant’s and Rafiekian’s
communications with Alptekin show that work on the project did not begin until the Government
of Turkey approved the work and the budget. See, e.g., Attachment 1, Exs. 14A, 16, 40, 67J.
The defendant also testified before the grand jury that the project “was always on behalf of
elements within the Turkish government,” and Turkish officials were involved throughout the
project. See Grand Jury Tr. at 5-12. With respect to #3, the defendant denied before the grand
jury that the project focused on improving U.S. business organizations’ confidence regarding
doing business in Turkey. See, e.g., Grand Jury Tr. at 9 (“Q: Was any work done regarding
business opportunities and investment in Turkey? A: Not that I’m aware of.”). And with respect
to #4, the emails between the defendant, Rafiekian, and Alptekin show that the op-ed was drafted
immediately after Alptekin expressed frustration with the lack of progress on the project, and
Rafiekian indicated that the op-ed was part of his “promise” to Alptekin. See, e.g., Attachment
1, Exs. 45A, 47. The defendant likewise testified before the grand jury that Rafiekian drafted the
op-ed, that it was a deliverable for the project, and that it was necessary because FIG “needed to

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show [they] had done something because [they] really hadn’t done much by that point.” Grand
Jury Tr. at 31-32.4
III.

Sentencing Recommendation and Analysis
The defendant’s multiple lies to various DOJ entities warrant a sentence within the

Guidelines range that is “‘sufficient, but not greater than necessary, to comply with’ the purposes
of federal sentencing, in light of the Guidelines and other § 3553(a) factors.” Freeman v. United
States, 564 U.S. 522, 529 (2011) (citing 18 U.S.C. § 3553(a)).
“Federal sentencing law requires the district judge in every case to impose ‘a sentence
sufficient, but not greater than necessary, to comply with’ the purposes of federal sentencing, in
light of the Guidelines and other § 3553(a) factors.” Freeman, 564 U.S. at 529 (citing 18 U.S.C.
§ 3553(a)). When weighing the § 3553(a) factors as part of its calculus of an appropriate
sentence, the Court should consider not only the nature and circumstances of the offense and the
history and characteristics of the defendant, but also the applicable sentencing objectives—that
is, that the sentence: (1) reflect the seriousness of the offense; (2) promote respect for the law; (3)
provide just punishment; (4) afford adequate deterrence; (5) protect the public; and (6)
effectively provide the defendant with needed educational or vocational training and medical
care. See 18 U.S.C. §§ 3553(a)(1) and (2). Furthermore, the sentence should reflect “the need to
avoid unwarranted sentence disparities among defendants with similar records who have been
found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6).

                                                            
  
Rafiekian was not charged in EDVA with making false statements in the FARA filings,
which is the relevant conduct as to defendant Flynn that the government highlights in this
submission, and to which the defendant admitted in the Statement of Offense. Instead, Rafiekian
was charged with being an agent of the Government of Turkey without notifying the Attorney
General, in violation of 18 U.S.C. § 951, and conspiring to do so and to violate FARA, in
violation of 18 U.S.C. § 371.  
4

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In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court ruled that the
Guidelines are no longer mandatory. However, “[a]s a matter of administration and to secure
nationwide consistency, the Guidelines should be the starting point and the initial benchmark”
for determining a defendant’s sentence. Gall v. United States, 552 U.S. 38, 49 (2007) (citations
omitted). The Supreme Court has “recognized that, in the ordinary case, the Commission’s
recommendation of a sentencing range will ‘reflect a rough approximation of sentences that
might achieve § 3553(a)’s objectives.’” Kimbrough v. United States, 552 U.S. 85, 109 (2007)
(quoting Rita v. United States, 551 U.S. 338, 350 (2007)). As one member of this Court has
held, “Booker requires judges to engage in a two-step analysis to determine a reasonable
sentence.” United States v. Doe, 412 F. Supp. 2d 87, 90 (D.D.C. 2006) (Bates, J.). Accordingly,
after reviewing the Guidelines calculation, “the [court] should then consider all of the § 3553(a)
factors to determine whether they support the sentence requested by a party. In so doing, [the
court] may not presume that the Guidelines range is reasonable . . . [but] must make an
individualized assessment based on the facts presented.” Gall, 552 U.S. 38 at 49-50 (citations
omitted).
A.

United States Sentencing Guidelines Calculation

The government submits that under the Guidelines, the appropriate total offense level is
six, which based on the defendant’s criminal history category of I, results in a Guidelines range
of 0 to 6 months of incarceration and a fine of $1000-$9500. With respect to other relevant
Guidelines provisions, the Court should consider the defendant’s lies to the DOJ in connection
with his FARA filings as relevant conduct for the purpose of determining his sentence within the
applicable Guidelines range under U.S.S.G. §§ 1B1.3 and 1B1.4. Based on the assertions made
in recent defense filings, and absent the defendant clearly and credibly disavowing those
assertions during a colloquy with the Court at the sentencing hearing, the defendant is not
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entitled to credit under U.S.S.G. § 3E1.1(a) for accepting responsibility. Finally, the government
is no longer moving for a departure under U.S.S.G. § 5K1.1 for providing substantial assistance
to the government.
i.

Base Offense Level

The government agrees with the Presentence Report (“PSR”) that the appropriate
Guidelines for the criminal conduct at issue here, violating 18 U.S.C. § 1001, is U.S.S.G. §
2B1.1(a)(2), results in a base offense level of six. See PSR at ¶ 27. That conclusion also reflects
the parties’ Guidelines calculation in the plea agreement. See Plea Agreement at 2, United States
v. Flynn, No. 17-cr-232 (D.D.C. Dec. 1, 2017) (Doc. 3) (“Plea Agmt”).
ii.

Relevant Conduct Analysis

In fashioning its sentence, the Court must consider all relevant criminal conduct. Under
the Guidelines, “the sentencing range for a particular offense is determined on the basis of all
‘relevant conduct’ in which the defendant was engaged and not just with regard to the conduct
underlying the offense of conviction.” Witte v. United States, 515 U.S. 389, 393 (1995) (citing
U.S.S.G. § 1B1.3, “[c]onduct that is not formally charged or is not an element of the offense of
conviction may enter into the determination of the applicable guideline sentencing range.”
U.S.S.G. § 1B1.3, comment, backg’d). Section 1B1.4 of the Guidelines further provides: “[i]n
determining the sentence to impose within the Guidelines range, or whether a departure from the
Guidelines is warranted, the court may consider, without limitation, any information concerning
the background, character and conduct of the defendant, unless otherwise prohibited by law.”
U.S.S.G. § 1B1. 4 (citing 18 U.S.C. § 3661). Courts may consider such relevant conduct in
determining the sentence within the range prescribed by the base offense level. See United
States v. Dorcely, 454 F.3d 366, 276 (D.C. Cir. 2006) (upholding as reasonable the District
Court’s reliance on acquitted conduct in sentencing the defendant to 24 months in a false
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statements case); see also United States v. Pinnick, 47 F.3d 434, 438 (D.C. Cir. 1995) (citing
United States v. Wood, 924 F.2d 399, 403 (1st Cir. 1991) (the court may consider conduct related
to other offenses when selecting the specific sentence within that range)).
Here, in determining where within the Guidelines range to sentence the defendant, the
Court should consider not just the defendant’s lies to the FBI regarding his contact with the
Russian Ambassador, but also his lies to the DOJ in his FARA filings concerning his work on
behalf of the Government of Turkey. See SOF at ¶ 5. His lies pertaining to FARA constitute
relevant conduct under Section 1B1.3(a)(1)(A) (“all acts and omissions committed, aided,
abetted, counseled, commanded, induced, procured, or willfully caused by the defendant”).
Those lies are particularly relevant here, as they demonstrate a pattern of lies to DOJ entities that,
collectively, deprived the DOJ of the ability to learn about foreign governments’ efforts to
influence the public and our government.
The defendant’s false statements to the FBI were significant. When it interviewed the
defendant, the FBI did not know the totality of what had occurred between the defendant and the
Russians. Any effort to undermine the recently imposed sanctions, which were enacted to punish
the Russian government for interfering in the 2016 election, could have been evidence of links or
coordination between the Trump Campaign and Russia. Accordingly, determining the extent of
the defendant’s actions, why the defendant took such actions, and at whose direction he took
those actions, were critical to the FBI’s counterintelligence investigation.
For similar reasons, the defendant’s materially false statements and omissions in his
FARA filings are relevant conduct, and should be considered by the Court in determining where
within the applicable Guidelines range to sentence the defendant.5 The purpose of FARA is to
                                                            
5
  
The defendant now asserts that the FARA paragraph in the Statement of Offense,

Paragraph 5, is “meaningless” because the word “willful” was not included in the Statement of
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provide transparency on efforts by foreign entities, in particular foreign governments, to
influence the American public and our government. FARA ensures that the public and our
government know when foreign actors are behind activity intended to influence policy or
opinion, so that policymakers and the public can properly evaluate the activity. Here, the
defendant was working under the “supervision and direction” of the Government of Turkey, but
never made such disclosures. SOF ¶5. During the entirety of the defendant’s time as the
National Security Advisor and a senior advisor to the Presidential Transition Team, the public
and our government did not know about his relationship with the Government of Turkey. When
he published an op-ed seeking to remove a U.S. resident from the United States, the public was
not informed that he and his company had been paid to do so at the behest of the Government of
Turkey. Instead, he falsely represented in his FARA filings that the op-ed was written at his own
                                                            

Offense when describing the defendant’s false statements to the FARA Unit. See Defendant’s
Response to the Court’s Order of July 9 and Government’s Filing of July 10 at 7, United States v.
Flynn, 17-cr-232 (D.D.C. July 11, 2019) (Doc. 98) (“Def. Resp. to Court”) (“Nowhere, however,
did [the defendant] sign or recite that he willfully allowed the filing to proceed”); SOF at ¶ 5.
The defendant’s new position on the FARA offense is contradicted by his prior statements, his
prior conduct, and the evidence. As the government noted in its reply to the defendant’s original
sentencing memo, the defendant “chose to make” those false statements after receiving an
explicit warning that providing false information was a federal offense. See Gov’t Reply to Def.
Sent’g Mem. at 5. The defendant did not object when the government represented at the
defendant’s initial sentencing hearing that the Statement of Offense represented the defendant’s
“unlawful” conduct, or that he could have been indicted in EDVA for that conduct. See
12/18/2018 Hearing Tr. at 27-28, 35. The defendant’s lack of objection at that time was not
surprising in light of the evidence. One year earlier, he told the FBI that he had seen FIG’s
FARA application prior to it being filed. See June 25, 2018, Interview of Defendant at 4
(Attachment 3). When one of the defendant’s attorneys who was helping him prepare the filings
sent the defendant an email with a draft of the FARA filings, which requested that he review the
filings, the defendant responded, “Yes, approved, this is as discussed.” July 3, 2019 Interview of
Robert Kelner at 5 (Attachment 4). Multiple Covington attorneys similarly informed the FBI
that the defendant reviewed the FARA filings. See June 21, 2018 Interview of Brian Smith at 6
(Attachment 5); June 21, 2018 Interview of Robert Kelner at 7 (Attachment 6). And when the
defendant signed five of the FARA filings, he affirmed, “under penalty of perjury,” that he “read
the information” in the filings, was “familiar with the contents thereof[,] and that such contents
are in their entirety true and accurate.” See Attachment 1, Ex. 56 p. 6; Ex. 58 pp. 2, 5; Ex 61 p.
9; Ex. 64 p. 2.
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initiative. And when individuals hired by his company lobbied federal and state officials, those
individuals never disclosed that their activity was all being done under the “supervision and
direction” of the Government of Turkey.
Accordingly, the defendant’s false statements regarding his work for the Government of
Turkey are relevant conduct for purposes of sentencing.
iii.

Based on the Current Record, the Defendant Has Failed to Accept Responsibility

Based on statements made in recent defense filings, the defendant has not accepted
responsibility for his criminal conduct, and therefore is not entitled to any such credit unless he
clearly and credibly disavows those statements in a colloquy with the Court. The Guidelines
provide for a two-level reduction “[i]f the defendant clearly demonstrates acceptance of
responsibility for his offense.” U.S.S.G. § 3E1.1(a) (emphasis added). A “defendant who enters
a guilty plea is not entitled to an adjustment . . . as a matter of right.” United States v. Saani, 650
F.3d 761, 767 (D.C. Cir. 2011) (quoting U.S.S.G. § 3E1.1 cmt. n.3). The defendant bears the
burden of convincing the Court that he is entitled to a downward adjustment for acceptance of
responsibility. See United States v. McLean, 951 F.2d 1300, 1302 (D.C. Cir. 1991). The plea
agreement mirrors the Guidelines, conditioning credit for accepting responsibility on the
defendant “clearly demonstrat[ing] acceptance of responsibility, to the satisfaction of the
Government, through [the defendant’s] allocation, adherence to every provision of this
Agreement, and conduct between entry of the plea and imposition of sentence.” Plea Agmt at 2
(emphasis added). The defendant has made no such demonstration, clear or otherwise.6
At the time of the defendant’s initial sentencing hearing on December 18, 2018, the
government supported the defendant receiving credit for accepting responsibility because the
                                                            
  
The PSR was prepared over one year ago, on November 20, 2018. On December 26,
2019, the government informed the Probation Office that due to the defendant’s recent conduct,
6

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defendant appeared to have accepted responsibility for all of his criminal conduct. During the
hearing, the Court engaged in a dialogue with the defendant concerning arguments in his
sentencing memorandum that appeared to challenge the circumstances of the January 24
interview. See 12/18/2018 Hearing Tr. at 6-7. However, when questioned by the Court, the
defendant declined to challenge the circumstances of that interview. Id. at 8. When pressed by
the Court about whether he wanted to proceed with his guilty plea “[b]ecause you are guilty of
this offense,” the defendant unequivocally responded, “Yes, Your Honor.” Id. at 16. And when
the Court asked whether he was “continuing to accept responsibility for [his] false statements,”
the defendant replied, “I am, Your Honor.” Id. at 10. The defendant’s recent conduct and
statements dramatically differ from those representations to the Court, which he made under
oath.
Six months later, in June 2019, the defendant began retracting those admissions and
denying responsibility for his criminal conduct. Far from accepting the consequences of his
unlawful actions, he has sought to blame almost every other person and entity involved in his
case, including his former counsel. Most blatantly, the defendant now professes his innocence.
See, e.g., Reply in Support of His Motion to Compel Production of Brady Material and to Hold
the Prosecutors in Contempt at 2, 6, United States v. Flynn, 17-cr-232 (D.D.C. Oct. 22, 2019)
(Doc. 129-2) (“Reply”) (“When the Director of the FBI, and a group of his close associates, plot
to set up an innocent man and create a crime . . . ;” alleging that text messages provided by the
government “go to the core of Mr. Flynn’s . . . innocence”). With respect to his false statements
to the FBI, he now asserts that he “was honest with the agents [on January 24, 2017] to the best

                                                            

it did not believe the defendant was entitled to a two-level reduction for accepting responsibility
pursuant to U.S.S.G. § 3E1.1(a). As of the date of this filing, the government has not had the
opportunity to meet with the Probation Office to explain its position.
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of his recollection at the time.” Reply at 23. Such a claim is far from accepting responsibility
for his actions. As the defendant admitted in his plea agreement and before this Court, during
the January 24 interview the defendant knew he was lying to the FBI, just as he knew he was
lying to the Vice President of the United States.
The defendant has also chosen to reverse course and challenge the elements and
circumstances of his false statements to the FBI. See, e.g., June 6, 2019 Sidney Powell Letter to
the Attorney General (Doc. 122-2) (“Powell Letter to AG”). The defendant now claims that his
false statements were not material, see Reply at 27-28, and that the FBI conducted an “ambushinterview” to trap him into making false statements, see Reply at 1. The Circuit Court recently
stated in United States v. Leyva, 916 F.3d 14 (D.C. Cir. 2019), cert. denied, No. 19-5796, 2019
WL 5150737 (U.S. Oct. 15, 2019), that “[i]t is not error for a district court to ‘require an
acceptance of responsibility that extended beyond the narrow elements of the offense’ to ‘all of
the circumstances’ surrounding the defendant’s offense.” Id. at 28 (citing United States v.
Taylor, 937 F.2d 676, 680-81 (D.C. Cir. 1991)). A defendant cannot “accept responsibility for
his conduct and simultaneously contest the sufficiency of the evidence that he engaged in that
conduct.” Id. at 29. Any notion of the defendant “clearly” accepted responsibility is further
undermined by the defendant’s efforts over the last four months to have the Court dismiss the
case. See Reply at 32.7

                                                            
7
  
Even where defendants have asserted a defense of entrapment, it is permissible for a

court to bar a defendant from receiving an acceptance of responsibility reduction. See United
States v. Layeni, 90 F.3d 514, 524 (D.C. Cir. 1996) (no error where court used entrapment
arguments to find a defendant had not accepted responsibility); United States v. Hoenscheidt, 7
F.3d 1528, 1532 (10th Cir. 1993) (no error where sentencing court acknowledged entrapment
defense does not necessarily bar Section 3E1.1 reduction and “used his entrapment arguments to
find [he] had not accepted responsibility”).  
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iv.

The Defendant Has Not Substantially Assisted the Government

At the time of his initial sentencing on December 18, 2018, the government represented
to the Court that the defendant had provided substantial assistance. As described in the
Addendum to its original sentencing memorandum, at that time the government represented that
the defendant had assisted in three investigations, but only deemed his assistance in the Rafiekian
case as “substantial.” See Addendum at 2. In reference to the Rafiekian case, the government
informed the Court that “the defendant’s cooperation and assistance have been critical to [the
government’s] investigation;” that the defendant had interviewed multiple times with the
prosecutors, “testified before the Grand Jury in EDVA, and provided materials that substantially
aided its investigation;” and that the defendant’s assistance had “cemented” the prosecutors’
decision to charge Rafiekian and Alptekin. Id. at 2-3.
In reference to the SCO’s investigation, the government stated that the defendant had
assisted the SCO’s investigation on “a range of issues,” through the course of 19 interviews, and
it provided three examples of such assistance. Id. at 3-5. The government also highlighted the
timeliness of the defendant’s assistance, stating: “The usefulness of the defendant’s assistance is
connected to its timeliness. The defendant began providing information to the government not
long after the government first sought his cooperation. His early cooperation was particularly
valuable because he was one of the few people with long-term and firsthand insight regarding
events and issues under investigation by the SCO. Additionally, the defendant’s decision to
plead guilty and cooperate likely affected the decisions of related firsthand witnesses to be
forthcoming with the SCO and cooperate.” Id. at 5.
Although the government noted that “some of th[e] benefit” of the defendant’s assistance
“may not be fully realized at th[at] time,” it proceeded to sentencing because it believed the
defendant’s anticipated testimony in the Rafiekian case had been secured through his grand jury
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testimony and the Statement of Offense.8 The Court, however, expressed that “courts are
reluctant to proceed to sentencing unless and until cooperation has been completed . . . [b]ecause
the Court wants to be in a position to fully evaluate someone’s efforts to assist the government.”
12/18/2018 Hearing Tr. at 26. The Court’s concern that the parties had prematurely proceeded to
sentencing was prescient.
The defendant retained new counsel in June 2019. Less than three weeks before the
Rafiekian trial, as prosecutors were in the process of preparing for the defendant’s testimony, his
new counsel proffered a new version of events surrounding the FARA filings. That version of
events was, in the view of the Rafiekian prosecutors, among other things, contradicted by the
defendant’s sworn grand jury testimony, statements he had made to the FBI in several
interviews, and the testimony of other expected trial witnesses. In light of that view, the
Rafiekian prosecutors made a rational, strategic decision not to call the defendant as a witness,
and promptly disclosed the proffered new version of events to Rafiekian’s counsel.9
The most serious charge against Bijan Rafiekian was acting as an agent of a foreign
government without notifying the Attorney General, in violation of 18 U.S.C. § 951. The
contested issue at trial with respect to that charge was whether Rafiekian knew that the
Government of Turkey was exercising direction and control over the Turkey project. The
defendant’s anticipated testimony at trial would have provided the best and most direct evidence
                                                            
  
While the defendant provided information that was “useful” to the SCO investigation,
Addendum at 4, his assistance in that investigation was never “substantial.”

8

 
  
Rafiekian’s counsel characterized the “new Flynn version of events” as “an unbelievable
explanation, intended to make Flynn look less culpable than his signed December 1, 2017
Statement of Offense and consistent with his position at his sentencing hearing. In short, Flynn
wants to benefit off his plea agreement without actually being guilty of anything.” See
Defendant’s Memorandum Regarding Correction at 5, United States v. Bijan Rafiekian, No. 18cr-457 (E.D. Va. July 5, 2019) (Doc. 262).

9

 

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of that allegation, to include that his knowledge of the Government of Turkey’s role came from
what Rafiekian told him. See Grand Jury Tr. at 5, 6, 12-13.10
Once the Rafikeian prosecutors made the rational, strategic determination not to call the
defendant as a witness, the government moved to designate the defendant as a coconspirator in
order to admit an exhibit as a statement of a coconspirator pursuant to FED. R. EVIDENCE
801(d)(2)(E). See Notice of Correction to the Record at 2, United States v. Bijan Rafiekian, No.
18-cr-457 (E.D. Va. July 3, 2019) (Doc. 261); see also Hearing Transcript at 23-25, United
States v. Bijan Rafiekian, No. 18-cr-457 (E.D. Va. July 12, 2019) (Doc. 309). This designation
would have permitted the introduction at the Rafiekian trial of a single email, Exhibit 40,
discussed supra at 11, authored by the defendant, which would have provided some evidence of
the direction and control exercised over the project by the Government of Turkey.11
Remarkably, the defendant, through his counsel, then affirmatively intervened in the Rafiekian
case and filed a memorandum opposing the government’s theory of admissibility on the grounds
that the defendant was not charged or alleged as a coconspirator. See Flynn Memorandum
Opposing Designation, United States v. Bijan Rafiekian, No. 18-cr-457 (E.D. Va July 8, 2019)
(Doc. 270). This action was wholly inconsistent with the defendant assisting (let alone

                                                            
10

 
The import of such testimony is evidenced by the district judge’s decision to overturn the
guilty verdict in the case, which was based in part on his finding that there was “no substantial
evidence that Rafiekian agreed to operate subject to the direction or control of the Turkish
government.” United States v. Rafiekian, No. 18-cr-457, 2019 WL 4647254, at *12 (E.D. Va.
Sept. 24, 2019). The district judge’s decision to overturn the verdict is currently on appeal to the
Fourth Circuit. United States v. Rafekian, No. 19-4803 (4th Cir. Oct. 31, 2019). 

 

11

Because the Court found that there was insufficient evidence that Rafiekian was, himself,
a member of a conspiracy, this document was entered into evidence only to show that it had been
received by Rafiekian, not for its truth.
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substantially assisting) or cooperating with the government in that case.12 Accordingly, while the
defendant initially helped the prosecutors in EDVA bring the Rafiekian case, he ultimately
hindered their prosecution of it.
The Guidelines provide for a downward departure, upon “motion of the government,” if
the “defendant has provided substantial assistance in the investigation or prosecution of another
person who has committed an offense.” U.S.S.G. § 5K1.1. As the Guidelines make clear, the
discretion to seek such a departure rests with the government. The plea agreement is explicit on
that point, stating that the “[g]overnment determines” whether the defendant “has provided such
substantial assistance” to merit a departure, and that such a determination “is within the sole
discretion of the Government and not reviewable by the Court.” Plea Agmt at 9 (emphasis

                                                            
12

 
Any claim by the defendant that the Rafiekian prosecution was aided by his agreement to
waive the attorney-client privilege and the attorney work-product doctrine regarding his
attorneys’ preparation and filing of the FARA documents would be unfounded. The defendant
explicitly did not waive any privileges or protections with respect to the preparation and filing of
the FARA documents. No waiver occurred because the government (and the defendant’s
attorneys) did not believe a waiver for such information was necessary—information provided to
a lawyer for the purposes of a public filing is not privileged. The district judge in Rafiekian
agreed with that conclusion, and permitted the defendant’s attorneys to testify about what the
defendant and Rafiekian told them because those statements were not privileged or protected as
opinion work product. See United States v. Rafiekian, No. 18-cr-457, 2019 WL 3021769, at *2,
17-19 (E.D. Va. July 9, 2019).

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added).13 Here, in the sole exercise of its discretion, the government withdraws its prior motion
for a downward departure pursuant to Section 5K1.1.14
B. Analysis of Factors Enunciated in 18 U.S.C. § 3553(a)
The factors enunciated in Section 3553(a) all favor the imposition of a sentence within
the Guidelines range. The defendant’s offense is serious, his characteristics and history present
aggravating circumstances, and a sentence reflecting those factors is necessary to deter future
criminal conduct. Similarly situated defendants have received terms of imprisonment.
i.

Nature and Circumstances of the Offense

Public office is a public trust. The defendant made multiple, material and false
statements and omissions, to several DOJ entities, while serving as the President’s National
Security Advisor and a senior member of the Presidential Transition Team. As the government
represented to the Court at the initial sentencing hearing, the defendant’s offense was serious.
See Gov’t Sent’g Mem. at 2; 12/18/2018 Hearing Tr. at 32 (the Court explaining that “[t]his
crime is very serious”).
The integrity of our criminal justice depends on witnesses telling the truth. That is
precisely why providing false statements to the government is a crime. As the Supreme Court has
noted:
                                                            
13

The government does not believe it is prudent or necessary to relitigate before this Court
every factual dispute between the defendant and the Rafiekian prosecutors. The above
explanation of the decision not to call the defendant as a witness in the Rafiekian trial is provided
as background for the Court to understand the basis for the government’s decision to exercise its
discretion to determine that the defendant has not provided substantial assistance to the
government. The government is not asking this Court to make factual determinations concerning
the defendant’s interactions with the Rafiekian prosecutors, other than the undisputed fact that
the defendant affirmatively litigated against the admission of evidence by the government in that
case.
14

The government notes its decision to withdraw its motion for substantial assistance has
no impact on the applicable Guidelines range, which will remain 0 to 6 months of incarceration.
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In this constitutional process of securing a witness’ testimony, perjury simply has
no place whatsoever. Perjured testimony is an obvious and flagrant affront to the
basic concepts of judicial proceedings. Effective restraints against this type of
egregious offense are therefore imperative. The power of subpoena, broad as it is,
and the power of contempt for refusing to answer, drastic as that is -- and even the
solemnity of the oath -- cannot insure truthful answers. Hence, Congress has made
the giving of false answers a criminal act punishable by severe penalties; in no other
way can criminal conduct be flushed into the open where the law can deal with it.
United States v. Mandujano, 425 U.S. 564, 576 (1975); see also Nix v. Whiteside, 457 U.S. 157,
185 (1986) (“[t]his Court long ago noted: ‘All perjured relevant testimony is at war with justice,
since it may produce a judgment not resting on truth.’”) (quoting In re Michael, 326 U.S. 224, 227
(1945)). All persons carry that solemn obligation to tell the truth, especially to the FBI.
The defendant’s repeated failure to fulfill his obligation to tell the truth merits a sentence
within the applicable Guidelines range. As the Court has already found, his false statements to
the FBI were material, regardless of the FBI’s knowledge of the substance of any of his
conversations with the Russian Ambassador. See Mem. Opinion at 51-52. The topic of
sanctions went to the heart of the FBI’s counterintelligence investigation. Any effort to
undermine those sanctions could have been evidence of links or coordination between the Trump
Campaign and Russia. For similar reasons, the defendant’s false statements in his FARA filings
were serious. His false statements and omissions deprived the public and the Trump
Administration of the opportunity to learn about the Government of Turkey’s covert efforts to
influence policy and opinion, including its efforts to remove a person legally residing in the
United States.
The defendant’s conduct was more than just a series of lies; it was an abuse of trust.
During the defendant’s pattern of criminal conduct, he was the National Security Advisor to the
President of the United States, the former Director of the Defense Intelligence Agency, and a
retired U.S. Army Lieutenant General. He held a security clearance with access to the
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government’s most sensitive information. The only reason the Russian Ambassador contacted
the defendant about the sanctions is because the defendant was the incoming National Security
Advisor, and thus would soon wield influence and control over the United States’ foreign policy.
That is the same reason the defendant’s fledgling company was paid over $500,000 to work on
issues for Turkey. The defendant monetized his power and influence over our government, and
lied to mask it. When the FBI and DOJ needed information that only the defendant could
provide, because of that power and influence, he denied them that information. And so an
official tasked with protecting our national security, instead compromised it.
ii.

History and Characteristics of the Offender

The defendant’s extensive military record, as described in his prior sentencing
submission, presents a clear factor in mitigation. See Def. Sent’g Mem. at 7-12. However, that
extensive record and government service, at the highest levels of the national security apparatus,
and his “many years” of working with the FBI, should have made him particularly aware of the
harm caused by providing false statements to the government. See id. at 13. That work also
exposed him to the threat posed by foreign governments, in particular Russia, seeking to covertly
influence our government and democracy.
iii.

The Need for Adequate Deterrence and to Promote Respect for the Law

The sentence should adequately deter the defendant from violating the law, and to
promote respect for the law. 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. That has been reinforced by his failure to accept responsibility and by his affirmative
litigation against the admission of evidence proffered by the government in the Rafiekian case.
The sentence should also to deter others from lying to the government. The FBI protects
our homeland from terrorism, espionage, cyber-based attacks, and all other manner of threats.
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Lying to the FBI, in any context, cannot be tolerated. That is particularly true in a
counterintelligence investigation targeting efforts by a foreign government to interfere in our
democratic process—a threat that continues to this day. Our criminal justice system depends on
the solemn obligation of witnesses to tell the truth, regardless of their motives to do otherwise.
Minimizing the seriousness of the defendant’s actions would tempt future witnesses to flout that
obligation. Similarly, FARA is at the focal point of the government’s efforts to combat covert
foreign influence. That is particularly the case for senior government officials, who should be
held to a higher standard when it comes to being honest and transparent, especially when those
officials hold positions of trust and power.
iv.

Avoiding Unwarranted Sentencing Disparities

It goes without saying that this case is unique. See 12/18/2018 Hearing Tr. at 43 (Court
noting that “[t]his case is in a category by itself”). Few courts have sentenced a high-ranking
government official and former military general for making false statements. And the
government is not aware of any case where such a high-ranking official failed to accept
responsibility for his conduct, continued to lie to the government, and took steps to impair a
criminal prosecution. Accordingly, while Section 3553(a)(6) requires the court to consider “the
need to avoid unwarranted sentence disparities among defendants with similar records who have
been found guilty of similar conduct,” there are no similarly situated defendants.
Although other persons investigated by the SCO pleaded guilty to lying to the FBI and
were sentenced to varying terms of incarceration, those individuals and their conduct are easily
distinguishable. See id. at 42-43 (“The Court’s of the opinion that those two cases aren’t really
analogous to this case. I mean, neither one of those individuals was a high-ranking government
official who committed a crime while on the premises of and in the West Wing of the White
House.”). Alex van der Zwaan lied to the SCO, pled guilty to violating 18 U.S.C. § 1001, and
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was sentenced to 30 days incarceration and a fine of $20,000. See United States v. van der
Zwaan, No. 18-cr-31 (ABJ). George Papadopoulos likewise lied to the SCO, pled guilty to
violating 18 U.S.C. § 1001, and was sentenced to serve 14 days incarceration, to perform 200
hours of community service, and pay a fine of $9,500. See United States v. Papadopoulos, No.
17-cr-182 (RDM). Neither defendant was a high-ranking government official, held a position of
trust vis-à-vis the United States, held a security clearance, had a special understanding of the
impact of providing misleading information to investigators, or denied responsibility for his
unlawful conduct.
The most recent sentencing pertaining to an individual charged by the SCO is also
distinguishable. Last month, Richard W. Gates III was sentenced to 45 days of intermittent
confinement during a 36-month probationary period for lying to the SCO and conspiring to
commit multiple offenses, including tax fraud and violating FARA. See United States v. Richard
W. Gates III, 17-CR-201-2 (ABJ). As Judge Amy Berman Jackson noted at the sentencing
hearing, Gates’ assistance was “extraordinary,” including more than 50 interviews and truthful
testimony in three different federal trials (Paul Manafort, Gregory Craig, and Roger Stone). See
Sentencing Hearing Transcript at 30, 35, United States v. Richard W. Gates III, 17-CR-201-2
(D.D.C. Dec. 17, 2019). Moreover, Gates accepted responsibility for all of his unlawful conduct,
including uncharged conduct. See id. at 26, 30-31 (“it is telling and it is particularly positive that
this defendant has accepted responsibility”). The Court granted the government’s motion for a
significant downward departure pursuant to Section 5K1.1 for providing substantial assistance,
gave Gates credit for accepting responsibility, and still sentenced him to 45 days of confinement.
See id. at 8, 38.
Just over one year ago, James A. Wolfe, who had served as the Director of Security for
the Senate Select Committee on Intelligence for 30 years, was sentenced to two months of
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incarceration and a fine of $7,500 for lying to the FBI. See United States v. James A. Wolfe,17CR-170 (KBJ). At sentencing, Judge Ketanji Brown Jackson stressed that “[l]ying to the FBI is
a serious crime, especially when it is committed by a government official who understands the
importance of truthfulness in the context of a national security investigation.” See Sentencing
Hearing Transcript at 60, United States v. James A. Wolfe, 17-CR-170 (D.D.C. Dec. 20, 2018).
The court concluded that Wolfe’s position—which was far less significant than the defendant’s
position as National Security Advisor—was an aggravating factor to consider at sentencing, and
one that distinguished his case from those of Papadopoulos and van der Zwaan. Moreover, in
that case, the defendant received credit for accepting responsibility.
In the above cases, a term of imprisonment was imposed. The government acknowledges
that the defendant’s history of military service, and his prior assistance to the government,
though not substantial, may distinguish him from these other defendants. The government asks
the Court to consider all of these factors, and to impose an appropriate sentence within the
Guidelines range.

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 Case 1:17-cr-00232-EGS Document 150 Filed 01/07/20 Page 32 of 33

CONCLUSION
For the foregoing reasons, the government submits that a sentence within the Guidelines
range is appropriate and warranted.
Respectfully submitted,
JESSIE K. LIU
United States Attorney
D.C. Bar No. 472845
By:

/s/

Brandon L. Van Grack
Special Assistant U.S. Attorney
950 Pennsylvania Ave., NW
Washington, DC 20530
(202) 233-0968
Jocelyn Ballantine
Assistant United States Attorney
555 4th Street, NW
Washington, D.C. 20530
(202) 252-7252

Dated: January 7, 2020

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 Case 1:17-cr-00232-EGS Document 150 Filed 01/07/20 Page 33 of 33

CERTIFICATE OF SERVICE
I, Jocelyn Ballantine, certify that I caused to be served a copy of the foregoing by electronic
means on counsel of record for the defendant on January 7, 2020.

/s/
Jocelyn Ballantine
Assistant United States Attorney
555 4th Street, NW
Washington, D.C. 20530
(202) 252-7252
Attorney for the United States of America

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