A planned sentencing hearing for Michael Flynn took an unexpected turn Tuesday, as Judge Emmet Sullivan harshly criticized the former national security adviser — so harshly that Flynn eventually asked for the sentencing to be postponed.
Special counsel Robert Mueller’s office had said a sentence of no prison time would be appropriate for Flynn, who admitted lying to the FBI about his Russia contacts, and has since been cooperating with investigations. But Sullivan did not sound convinced, and instead made clear prison time was a possibility.
“This is a very — serious — offense,” Sullivan said. “A high-ranking senior official of the government making false statements to the Federal Bureau of the Investigation while on the physical premises of the White House.” He said he felt “disgust” and “disdain” for what Flynn did.
“Arguably, you sold your country out,” Sullivan said, even asking prosecutors whether they thought Flynn could have been charged with treason. (He walked back both of those statements somewhat after a brief recess.)
In part, Sullivan seemed annoyed because Flynn’s lawyers used a recent sentencing memo not to signal remorse, but rather to imply that Flynn was railroaded. For instance, they mentioned that Flynn had been told that the FBI interview could be quicker if he didn’t have a lawyer present, and that he wasn’t explicitly warned that lying to the FBI would be a crime.
Sullivan, however, used the hearing to try and dispel the myth that Flynn was set up. He got Flynn to admit that he understood lying to the FBI was a crime, and to reiterate his guilty plea. And he even said he had some “concerns” that Flynn hadn’t fully accepted responsibility for his crime.
The judge also questioned whether Flynn truly wanted to proceed to sentencing, even though his cooperation wasn’t yet complete. He warned them that if Flynn was sentenced today, he might not receive the full benefits of that cooperation.
So after conferring with his attorneys, Flynn said he did in fact want to delay his sentencing. Evidently, they were surprised by Sullivan’s view of the case, and didn’t expect a prison sentence to appear so likely. In the end, then, the matter was pushed into next year.
The back-and-forth between Mueller and Flynn in advance of sentencing
Last December, Michael Flynn pleaded guilty to making false statements to the FBI about his contacts with Russian Ambassador Sergey Kislyak.
What led to that admission: After President Barack Obama imposed sanctions on Russia in response to their interference with the 2016 election, Flynn got in touch with Kislyak and urged Russia not to retaliate. He did so in coordination with Trump transition officials. Afterward, Kislyak contacted Flynn to say Russia would indeed exercise restraint because of his request.
But when two FBI officials interviewed Flynn about this on January 24, 2017, Flynn lied. He claimed not to remember discussing sanctions with Kislyak, and certainly not to have urged Russian restraint. Flynn also lied about a previous contact with the ambassador, in which he’d urged Russia to abstain from a United Nations Security Council vote on Israeli settlement policy.
The controversy and the ensuing leaks about it cost Flynn his job. After that, he filed a FARA registration form in which he made various false statements about work he’d done during the 2016 election to benefit the government of Turkey. He admitted all this in his plea deal with Mueller’s team last December.
So after a long year, it came time for Flynn to be sentenced. And at first, all seemed well. The special counsel filed a sentencing memo two weeks ago suggesting he was quite happy with Flynn’s cooperation with the investigation — happy enough to recommend that a sentence of no prison time would be appropriate. “God is good,” Flynn’s son tweeted.
Then things took a turn.
With prison time seemingly off the table, Flynn’s lawyers decided to use their own sentencing memo to try and settle some scores.
Unlike George Papadopoulos’s lawyers, who used his sentencing memo to argue that he was “ashamed and remorseful” of his actions, and laid out a sympathetic narrative for why “Young George” lied (Papadopoulos is 31), Flynn’s team showed little interest in repentance. Flynn’s lawyers simply said he “does not take issue” with the government’s description of his crime, and vaguely claimed that he “recognizes that his actions were wrong.”
But the defense then proceeded to lay out a series of “additional facts” that seemed chosen to suggest Flynn was railroaded. They mentioned that agents hadn’t warned Flynn it was a crime to lie to the FBI, and that the deputy FBI director suggested the questioning could be done more quickly if Flynn didn’t have a lawyer present.
All this seemed intended to bolster what Flynn’s relatives and friends have been publicly claiming for more than a year — that he was tricked, or set up, or that his prosecution was somehow unfair. The Wall Street Journal editorial page soon wrote about “The Flynn Entrapment,” portraying him as a “tragic” target of Mueller, and taking a step further to claim that even though he admitted lying, perhaps he hadn’t deliberately lied at all.
Last Friday, then, Mueller’s team fired back, arguing that Flynn’s lies were premeditated and that he was now attempting to “minimize the seriousness” of his crime. “A sitting National Security Advisor, former head of an intelligence agency, retired Lieutenant General, and 33-year veteran of the armed forces knows he should not lie to federal agents,” Mueller wrote.
Sullivan evidently agreed. He made clear he thought the offense was very serious and questioned whether Flynn truly had accepted responsibility for it.
After many harsh words for Flynn, he asked whether Flynn might want to postpone his sentencing because his cooperation wasn’t yet complete — and Flynn’s attorney eventually said yes.
Flynn’s attorney Robert Kelner suggested that Flynn’s additional cooperation would likely involve the recent indictment of his former business associates filed in Virginia, and not the Mueller probe. “General Flynn has held nothing back — nothing — in his extensive cooperation with the special counsel’s office,” Kelner said.
However, in light of the hearing, Kelner said they’d reevaluated and decided that they wanted to ensure Flynn’s cooperation was fully complete before his sentence, so he’d get the maximum benefit. Mueller’s team didn’t object, and the judge scheduled a new check-in for March of next year.