So much for the argument that Michael Flynn has been railroaded.
The former national security adviser went to federal court Tuesday in Virginia to be sentenced, but will have to wait until March to learn his fate after the judge postponed sentencing to allow Flynn time to complete his cooperation with the Special Counsel’s Office. What to make of the turn of events?
Flynn entered a guilty plea last year to charges of lying to the FBI about contacts with Russia. Monday, two of Flynn’s former business associates were charged in federal court in the Eastern District of Virginia for unregistered lobbying on behalf of Turkey. That indictment referenced the involvement of “Person A,” believed to be Flynn. Judge Emmet Sullivan spent much of the hearing expressing his “disgust” and “disdain” for Flynn’s criminal conduct, saying that Flynn had“arguably sold [his] country out,” at one point even accusing Flynn of treason before retracting that statement.
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Judge Sullivan’s comments came in stark contrast to some of the arguments critics have made in recent weeks, contending that Flynn had been coerced into lying to the FBI. In his sentencing memorandum to the court, Flynn’s lawyer wrote that when the FBI interviewed Flynn in January 2017, agents told him that the interview would be more efficient without a lawyer, and that the FBI did not warn Flynn that it was illegal to lie to them. These representations caused Judge Sullivan to take the unusual step of ordering the government to produce its report from the interview, known by the name of the form on which it is printed as an FBI 302.
The 302 revealed that the agents did not coerce Flynn in any way. It appears that the agents had reviewed recordings of Russian Ambassador Sergei Kislyak’s calls that had been intercepted by the U.S. intelligence community, including calls with Flynn, and noticed that they conflicted with public accounts of these conversations. During the interview, the FBI agents went out of their way to provide Flynn an opportunity to come clean, parroting back to him his own words to try to jog his memory, and yet Flynn persisted in lying about the substance of his conversations with Kislyak regarding U.S. sanctions and a United Nations vote.
What’s more, the Statement of the Offense filed at the time of Flynn’s guilty plea shows that Flynn coordinated the substance of his calls to Kislyak with “a senior official of the Presidential Transition Team, who was with other members of the transition team at the Mar-a-Lago resort in Palm Beach, Florida,” and a “very senior member of the Presidential Transition Team.” These were not the types of calls that simply slips one’s mind. And, in fact, Flynn admitted as much when he entered his guilty plea.
Some critics like Alan Dershowitz have also argued that Flynn’s lies were not material, an essential element of a false-statements crime. They say that if the FBI already knew the content of Flynn’s conversations with Kislyak, there was no reason to interview him besides trapping him in a lie. This argument fails to consider that by lying, Flynn prevented the FBI from advancing its investigation. If Flynn had been truthful, agents would have asked why he had discussed these matters with the Russian ambassador, and who else from the Trump transition team was involved. Instead, they were stonewalled. It was not until Flynn was charged with lying that he decided to come clean, resulting in a delay in the investigation by almost a year, a delay that Flynn could have prevented by telling the truth from the outset.
Heading into the sentencing hearing, Flynn was trying to have it both ways—obtaining credit for cooperation and acceptance of responsibility in hopes of a sentence of probation, while minimizing his own wrongdoing. Judge Sullivan would have none of it. He elicited from Flynn the admission that he knew it was a crime to lie to the FBI and his desire to proceed to sentencing rather than withdraw his guilty plea.
Judge Sullivan took a break during the hearing to confer with counsel, and then returned to the bench only to postpone the hearing until March. The only clue as to the reason came when Flynn’s lawyer said that they would take the judge up on his suggestion of delaying the sentencing so that Flynn could complete his cooperation in Virginia, presumably in the case against his former business associates for unregistered lobbying for Turkey. Judge Sullivan’s tone and his postponement of sentencing indicate that he might like to see the fruits of Flynn’s cooperation before he agrees with the government’s recommendation of a sentence of probation in light of the seriousness of Flynn’s crimes. Despite his meeting with the special counsel on 19 occasions and providing information that has been deemed useful, Flynn may have harmed himself by falsely accusing the FBI of treating him unfairly.
Flynn and the rest of us will have to wait until March to learn Flynn’s fate, but one thing is clear: Judge Sullivan will not allow Flynn to play the martyr.
