Michael Flynn and his attorneys must have expected their day to unfold differently — and so did Robert Mueller’s prosecutorial team. By the end of what was supposed to be a pro forma sentencing hearing, Flynn was left twisting in the wind until March after a hurricane-force blast from the federal judge deciding his fate.
Even though prosecutors had praised Flynn’s cooperation and recommended no prison time, Judge Emmet Sullivan clearly has a different perspective on Flynn’s situation. “You sold your country out,” Sullivan said and suggested that prosecutors might have a case for treason:
A federal judge is telling former national security adviser Michael Flynn that “arguably you sold your country out.”
U.S. District Judge Emmet Sullivan says he “can’t hide my disgust, my disdain” for this criminal offense.
He says Flynn committed a “very serious offense” by lying to the FBI on the premises of the White House.
Sullivan explicitly broke out the T-word, and said that an offer to postpone might save him from prison time:
Judge Emmet Sullivan even asked a prosecutor in special counsel Robert Mueller’s office if he believed Flynn could have been charged with treason for his conversations with then-Ambassador Sergey Kislyak before Trump took office in early 2017. The prosecutor said Mueller had not considered lodging such a charge.
Sulllivan warned Flynn that if he did not accept an offer to postpone his ongoing sentencing hearing on a charge of lying to the FBI about what he and Kislyak discussed, “I cannot assure you that if you proceed today, you will not receive a sentence of incarceration.”
CNN beat reporter Katelyn Polantz reports that Sullivan’s animosity apparently took the prosecution by surprise as well. Polantz wonders if Sullivan’s hoping Flynn will put off his sentencing and perform more atonement through Mueller’s office:
Judge Sullivan, having left the bench for a break, is now giving Flynn an opportunity to speak with his lawyers privately.
Will Flynn continue with sentencing today? Will he change his mind+cooperate more? Will Sullivan give him a harsher sentence than what Mueller suggested?
— Katelyn Polantz (@kpolantz) December 18, 2018
It might be designed to force Flynn into an allocution from which he can’t retreat later. Flynn’s attorneys and his defenders have accused the FBI and the special counsel of sandbagging him and of manipulating the 302 from his interview to catch him in a lie. Sullivan seemed very interested in getting Flynn on the record in court on those defenses:
U.S. District Judge Emmet G. Sullivan began Flynn’s sentencing in an unusual way, noting another judge had accepted Flynn’s guilty plea and forcing the former Trump ally to answer questions under oath. Sullivan reminded Flynn he could get into “more trouble” if he were to lie in court, then asked, “Were you not aware that lying to FBI investigators was a crime?”
“I was aware,” Flynn said.
The judge asked if he wanted to postpone the sentencing, or reconsider his plea.
“I would like to proceed your honor,” Flynn said.
“Because you are guilty of this offense?” the judge responded.
“Yes, your honor,” Flynn said.
Sullivan’s ire was apparent when he told Flynn and his attorneys, “I cannot recall any incident in which the court accepted a guilty plea in which he was not guilty, and I don’t intend to start today.” The defense responded by saying that their issues with the conduct of the FBI was not to minimize Flynn’s crimes, but to argue against consideration of aggravating circumstances. Robert Kelner insisted that Flynn “fully accepts responsibility, [and] stands by his guilty plea.”
After a short recess, Sullivan appeared to have calmed down. He explained that his remark about treason was a hypothetical, and the prosecutor reiterated that there was no basis for such a charge:
Judge returns to his hypothetical question on treason:
“I wasn’t suggesting he was committing treason. I was just curious if he could have been charged. Lots of conspiracy theories out there.”
“The gov't has no reason to believe” that Flynn “committed treason.”
— NBC News (@NBCNews) December 18, 2018
It’s an absurd hypothetical at that. The US didn’t even start enforcing criminal violations of FARA until just recently with Mueller. The last person convicted of treason outside of an actual war was Walter Allen in 1922 for an uprising by coal miners that involved Army troops. The five other Americans convicted of treason in the last century were all working for Axis powers in World War II, three of whom were propagandists. It’s very possible for Sullivan to be “disgusted” by Flynn’s comments without hyperbolic suggestions of prosecution for treason over a FARA violation and corruption that involved an ally and NATO partner of the US — Turkey.
At any rate, it worked. When the hearing resumed, Flynn’s attorneys asked for a delay in sentencing, presumably to get Flynn a little more credit with the court. He’ll be back in March to see what Sullivan thinks:
Judge Sullivan says it is fine to delay Flynn's sentencing and proceed by having both sides update the judge on Flynn's case in March, per @kpolantz
— Manu Raju (@mkraju) December 18, 2018
One has to wonder whether Flynn’s attorneys will file a motion to change the judge. And one has to wonder whether Mueller’s team would oppose such a motion if they do. Any other cooperators looking at plea deals from this point forward has to consider whether they’d be better off with a jury rather than a judge deciding their fate.
CBS’ Paula Reid wonders whether they’ll ask for a new judge, but also suggests that Flynn might want to change attorneys. Both of those options have to be looking pretty good to Flynn at the moment.
"So General Flynn has to wonder whether or not he's getting the greatest legal representation and the fairest shake in this courtroom," @paulareidcbs reports after a federal judge delayed Michael Flynn's sentencing. https://t.co/VPHzWuk8P1 pic.twitter.com/mdfZhi4Cjb
— CBS News (@CBSNews) December 18, 2018