I'm confused by Judge Emmet Sullivan's decision to delay sentencing Michael Flynn for his crime of lying to the FBI. Flynn pled guilty to it. But a presumably routine sentencing blew up when the judge launched into a tirade suggesting that Michael Flynn may be guilty of much more than lying to the FBI. He might be guilty of treason. In the heat of the moment Sullivan might truly have believed it. But he turned around a short time later and walked it all back.
Judge Sullivan erupted right after Flynn declined several of his offers to let Flynn withdraw his guilty plea. There was no question, Sullivan was livid.
So Sullivan kicked things off asking Flynn, the highest ranking official so far charged with crime in Trump’s White House circle,if he wanted to withdraw his guilty plea and if he had in fact been tricked. Flynn responded he had aware that his lying repeatedly to the FBI about his contacts with Kislyak was a crime and he did not want to withdraw his guilty plea.
After Sullivan gave Flynn several opportunities to withdraw that plea, he formally accepted the plea, then lit into Flynn, calling his offense “very serious” and expressing his “disdain” and “disgust.”
And then the judge really unloaded on Flynn. He seemed to lose it, almost completely. Sullivan might have intended all along that he would intimidate Flynn. Well, upping the ante from lying to treason was sure to do it. But the accounts that are available seem to say that the judge gave into his rage and ranted.
"Not only did you lie to the FBI, you lied to senior officials in the incoming administration," Sullivan told a startled Flynn. Beckoning to the flag, the judge continued: "All along, you were an unregistered agent of a foreign country while serving as the national security adviser to the president of the United States. Arguably, that undermines everything this flag over here stands for. Arguably, you sold your country out."
Sullivan even asked whether Flynn's behavior "rises to the level of treasonous activity. … Could he have been charged with treason?"
The prosecutor answered, "No," but that was small comfort to Michael Flynn. Just when he thought his legal problems might be coming to an end, Judge Sullivan said, not so fast. Even though Flynn had not been charged for failures related to Foreign Agents Registration Act, the judge made it clear they would be taken into consideration when in the sentence for lying. And that would lift the odds in favor of jail time.
Sullivan said that while he can’t guarantee that Flynn will receive a lighter sentence after his cooperation is fully over, it would at least allow the court to take everything into consideration with regard to Flynn’s assistance to prosecutors. “I can’t consider the full extent of your cooperation in this case,” Sullivan said, noting that Flynn’s crime of lying about his conversations with the Kislyak was “very serious” and resulted in top White House officials—including the vice president and press secretary—lying to the public. “You can’t minimize that,” he said. “If you want to postpone this, that’s fine with me.”
What a shock to Flynn and his defense team. Judge Emmet Sullivan had earned a reputation for coming down hard on prosecutorial misconduct. It was Judge Sullivan who dismissed the guilty verdict against the late Senator Ted Stevens of Alaska. Stevens was the victim of overzealous and likely partisan prosecutors who withheld exculpatory evidence from his defense team during his trial for corruption in 2008. Sullivan threw out the verdict, but the trial cost Stevens his re-election to the Senate. Then in 2010 Stevens was killed in a plane crash. So, if fireworks were in store this time, they were expected to be along the same lines as in the Stevens case with Judge Sullivan focusing on potential misconduct in the Office of the Special Counsel Robert Mueller. Signs pointed in that direction when Sullivan was assigned to Flynn's case. He replaced the abruptly recused Judge Rudolph Contreras, and as his first order of business Sullivan issued a "Brady" order to the Special Counsel.
It was Judge Rudolph Contreras who accepted General Flynn’s guilty plea, but he suddenly was recused from the case. The likely reason is that Judge Contreras served on the special court that allowed the Federal Bureau of Investigation to surveil the Trump campaign based on the dubious FISA application. Judge Contreras may have approved one of those four warrants.
The judge assigned to Flynn’s case now is Emmet G. Sullivan. Judge Sullivan immediately issued what is called a “Brady” order requiring Mueller to provide Flynn all information that is favorable to the defense whether with respect to guilt or punishment. Just today, Mueller’s team filed an agreed motion to provide discovery to General Flynn under a protective order so that it can be reviewed by counsel but not disclosed otherwise.
This development is huge. Prosecutors almost never provide this kind of information to a defendant before he enters a plea — much less after he has done so.
Sullivan's Brady order shifted attention to the Special Counsel Robert Mueller . Had anything been denied the defense team? Did Judge Sullivan suspect that Mueller coerced Flynn into a guilty plea for a crime he didn't commit? And does Judge Sullivan still harbor such suspicions? The Special Counsel had not strictly followed Department of Justice policy, which generally requires that defendants be charged with the most serious offenses that can be supported by evidence.
On Monday, however, the Eastern District of Virginia unsealed an indictment charging Flynn’s business partner and another Turkish individual with crimes related to their failure to register as a foreign agent acting in the United States. For the first time, the indictment revealed the full nature and extent of Flynn’s illegal conduct related to his work with Turkey. This egregious conduct involved a months-long scheme by Flynn and his partners to illicitly and secretly charge the Turkish government hundreds of thousands of dollars in return for lobbying American officials to reverse stated U.S. policy to the benefit of the Turkish government while Flynn worked as a critical national security adviser to the Trump campaign. What’s more, Flynn was then complicit in lying to the Justice Department about this foreign lobbying during and after he served as Trump’s national security adviser.
Yet Mueller did not require Flynn to plead guilty to this conduct, which would have increased his sentencing exposure. Mueller seems to have artificially suppressed Flynn’s sentencing-guidelines range in return for his cooperation, contrary to Justice Department policy. And he recommended no prison for Flynn.
As it stands, Michael Flynn did not withdraw his guilty plea, but he did agree to a delay in sentencing, and in the meantime,presumably, his obligation to cooperate with prosecutors remains in force. But the difference now is that Judge Sullivan has required Special Counsel to provide him with all details of Flynn's cooperation. What is going on?
By outward appearances, Robert Mueller is now finished squeezing Michael Flynn for evidence of Trump campaign collusion with Russia, but that doesn't mean Michael Flynnn is done being squeezed. Judge Emmet Sullivan seems to have taken over the squeezing, the object of which might be to extract evidence of improper behavior on the part of Special Prosecutor Robert Mueller. For instance, why was Flynn given a sweetheart deal — no jail time for one count of lying — when he might well have been charged for acting as an unregistered agent of a foreign power? Then again, maybe that wasn't such a sweetheart deal, especially when you compare it to the one Tony Podesta appears to have gotten. Tony is the brother of Hillary Clinton's campaign manager John Podesta. To absolutely no one's surprise, Tony Podesta, apparently guilty of the same crime as Flynn — acting as an unregistered agent of a foreign power — has never been charged with anything.
When this latest sentencing delay in Michael Flynn's case was announced my first thought was, what a gift, another excuse to keep the investigation going — carte blanche for Robert Mueller. Now I'm not so sure about that. My confusion continues. When Judge Emmet Sullivan took up this case he was very much interested in Robert Mueller's actions. It appears he still is.
Last updated December 21, 2018, 5:48 AM