DOJ relents, says it would accept probation for Michael Flynn as he moves to withdraw guilty plea

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Michael Flynn moves to withdraw his guilty plea

Former National Security Adviser Michael Flynn seeks to formally withdraw his guilty plea, saying federal prosecutors breached their deal with him; insight from Michael Flynn's attorney Sidney Powell.

The Department of Justice backed down from seeking jail time Wednesday and made clear that prosecutors would accept mere probation in the case of former Trump National Security Adviser Michael Flynn -- a shift that comes as Flynn moves to withdraw his guilty plea leveraging accusations of government misconduct.

Just weeks ago, the DOJ said it would seek up to six months of prison time for the retired Army lieutenant general who spent just 24 days at his post in the Trump administration. Represented by an aggressive new attorney, Flynn days later had moved to withdraw his guilty plea for making false statements to two FBI agents in 2017 -- statements that eventually wrapped him up in former Special Counsel Robert Mueller's investigation into Russian interference in the 2016 election.

"In truth, I never lied," Flynn wrote in a new supplemental motion to withdraw his guilty plea filed Wednesday. "My guilty plea has rankled me throughout this process, and while I allowed myself to succumb to the threats from the government to save my family, I believe I was grossly misled about what really happened."

Flynn also blamed his former lawyers for providing him with bad information that led him to plead guilty.

FILE - In this Dec. 1, 2017, file photo, Michael Flynn, center, arrives at federal court in Washington. A judge set a sentencing hearing for Michael Flynn after rejecting arguments from the former Trump administration national security adviser that prosecutors had withheld evidence favorable to his case. (AP Photo/Susan Walsh, File)

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"One of the ways a person becomes a 3-star general is by being a good soldier, taking orders, being part of a team, and trusting the people who provide information and support," Flynn wrote. "Lori and I trusted Mr. Kelner and Mr. Anthony to guide us through the most stressful experience in our lives, in a completely incomprehensible situation. I have never felt more powerless."

While the DOJ's stance is technically the same -- it is seeking a sentence of zero-to-six months -- the department's new filing makes clear that it would not oppose a sentence imposing zero jail time if that is what the judge decides.

In support of a potential sentence of probation, the government notes two "similarly-situated" high-ranking officials who committed similar crimes and got probation. Former National Security Adviser Sandy Berger, who stole classified information then lied about it to investigators, and Gen. David Petraeus, who was convicted of possessing classified documents he should not have had, both were sentenced to probation.

It was not clear why the Justice Department appeared to soften its position, though prosecutors did suggest Flynn deserves credit for his decades-long military service.

FILE - In this March 22, 2019 file photo, an American flag flies outside the Department of Justice in Washington. (AP Photo/Andrew Harnik)

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“There is no dispute that the defendant has an unusually strong record of public service," prosecutors wrote.

Prosecutors initially were in favor of probation due to Flynn's level of cooperation with the government, but Flynn replaced his lawyers with new ones who have taken a far more adversarial approach in the case, including in their declaration and a supplemental motion Wednesday as he sought to withdraw his guilty plea.

In a sweeping argument that took aim at the bureau's "outrageous" conduct, Flynn's legal team highlighted a slew of information that has come to light since Flynn's plea -- including that no precise record of Flynn's statements to the agents exists and that the original handwritten FD-302 witness report from the interview is "missing," with subsequent versions later "edited" in some undisclosed manner by anti-Trump FBI officials.

Moreover, Flynn's team maintained he had no reason to lie about his communications with the Russian ambassador concerning how the country should respond to sanctions imposed by the Obama administration, or a then-pending vote on Israel in the United Nations -- the conversations that put him on the FBI's radar and he later pleaded guilty for lying about. After all, Flynn said, he knew federal officials "routinely monitor, record, and transcribe" conversations like the ones he had with Russian diplomats.

The DOJ made clear in its Wednesday filing, however, that it was opposed to granting Flynn a sentence lighter than probation.

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"Defendant Flynn has affirmed his guilt of this crime on multiple occasions, before multiple district judges, and he does not directly contest it in his supplemental sentencing memorandum," the filing says. "Accordingly, the relevant facts are before the Court to impose an appropriate sentence for the offense of conviction."

The Justice Department says that while Flynn did provide assistance to their investigation and that a judge may consider that in fashioning a sentence, any claims of acceptance of responsibility are hard to reconcile with his request to withdraw his guilty plea.

Flynn is due to be sentenced on Feb. 27.

Fox News' Gregg Re and the Associated Press contributed to this report.