Sullivan's Travails

Judge Emmett Sullivan does not like Robert Mueller.  Who does?

Sullivan’s Travels with Mueller

Judge Emmet G. Sullivan was the judge in the Ted Stevens case.  Stevens was the 85-year-old Republican senator from Alaska whose conviction for corruption was set aside by Judge Sullivan because of investigative and prosecutorial abuse.  Prosecutors falsely charged and convicted a sitting U.S. senator whom they knew was innocent.  It is believed that because of Stevens's October conviction, he lost his November re-election bid to Democratic challenger Mark Begich.

Judge Sullivan angrily stated when he set aside the conviction a month later that, "In nearly 25 years on the bench, I've never seen anything approaching the mishandling and misconduct that I've seen in this case."

Judge Sullivan also appointed an independent counsel to investigate misconduct by the government investigators (Mueller’s FBI) and prosecutors.  That IC, Henry F. Schuelke, III, concluded, "The investigation and prosecution of U.S. Senator Ted Stevens were permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated [his] defense and his testimony, and seriously damaged the testimony and credibility of the government's key witness."  And, "It should go without saying that neither Judge Sullivan, nor any District Judge, should have to order the Government to comply with its constitutional obligations.”

Sullivan and Mueller Today

The original judge for the Flynn sentencing was Judge Rudolf Contreras.  Contreras, of the FISC (the court which accepted from the Obama administration the Steele dossier as evidence supporting the issuance of a FISA warrant to spy on members of the Trump campaign), accepted Flynn's guilty plea.  Six days later, Contreras was recused from the case.  Some say the reason was his FISC relationship, some say it was because he is a personal friend of Peter Strzok, the disgraced former FBI Chief of the Counterespionage and the universally acknowledged “King of Texts,” having exchanged a gazillion of them with the also disgraced former FBI counsel to the just as disgraced “King of Lies” Deputy FBI Director Andrew McCabe.

Emmet G. Sullivan was appointed to take Contreras’ place.  On February 16, 2017, the judge ordered Mueller to release to Flynn's lawyers any and all exculpatory and non-exculpatory information and evidence in Mueller's possession.  This is called a Brady Order and since the Stevens’ prosecution, Judge Sullivan issues it in every case upon which he sits in judgment.  He also ordered that "if the government has identified any information which is favorable to the defendant but which the government believes not to be material, the government shall submit such information to the Court for in camera review."

In other words, any evidence Mueller feels is not material or contains classified information and therefore should not be released, must be provided to Judge Sullivan for him to make the determination as to what can and cannot be released – no hiding behind the magic of withholding evidence or prosecutor-determined redaction.  Plainly, Sullivan was ordering Mueller to turn over everything

Yet, after receiving the prosecution sentencing memo, the defense sentencing memo, and Mueller’s response, Sullivan saw his original order had not been fully complied with and on 12/12/18, again demanded from the prosecution, more specifically this time, “any 302s or memoranda relevant to the circumstances discussed on pages 7-9 of the defendant’s sentencing memorandum.”  This, of course, would include the original FD-302, pertaining to the 1/24/17 questioning of General Flynn by FBI agents.  He gave Mueller until no later than Friday to comply. 

On Friday Mueller provided some of the requested documents but left the July 2017 interview of Strzok as the only submitted FD-302.  Mueller also submitted arguments under seal for redactions to the 2/15/17 FD-302.  On Monday, the judge again ordered the 2/15/17 FD-302 released and Mueller did so late in the afternoon. 

Submitting arguments for redaction but not the FD-302 was not only an attempt to delay, but it is also a violation of not only the judge’s 12/12 order that the actual document be submitted by Friday but also his first court order when he took over the case that all documents be submitted.

Former U.S. Attorney for the District of Columbia and Fox commentator Joseph diGenova said, “The failure to turn over the single most important document in the Flynn case shows an effort to cover up unethical, unprofessional and illegal conduct by the office of special counsel.”  He also said Mueller’s action in withholding the 2/15/17 FD-302 was “an insult to the court.”

The Sentencing

I think people misunderstand Judge Sullivan’s actions at the 12/18/18 sentencing. 

In the morning, prior to the recess, he gave Flynn the opportunity to withdraw his plea, which Sullivan seemingly had concluded was his intention when his lawyers filed their sentencing memo, because otherwise with a recommendation of 0 jail time it served no purpose.

I think the judge was amenable to throwing out the case, but only if Flynn changed his plea, and his unwillingness to do so angered the judge because as Sean Davis has pointed out it reeked of him wanting to have his cake and eat it too.  In fact, I think Sullivan’s angered reaction is further evidence that he would have thrown it out due to prosecutorial abuse of power.

Yet Flynn, having already lost his savings and home and being threatened by Mueller with the prosecution of his son, and having gotten the message with the indictments of two associates (for FARA violations with respect to lobbying for Turkey) and realizing he would be exposing himself to decades of potential jail time was not willing to bet the house (sorry, he had already lost that), I mean his remaining years on Sullivan doing the right thing.

Considering that Judge Sullivan threw out the 2008 conviction of Ted Stevens because of investigative and prosecutorial abuses, I think Flynn should have taken that chance, but then, I don’t have to bet my life on it.

When Flynn refused the opportunity, Sullivan accused Flynn of potential "treason" for acting as a paid representative of Turkey while serving as National Security Advisor. 

After the recess, Sullivan, probably having used the time to reread the submitted documents and after further questioning the prosecution and being told that Flynn's relationship with Turkey ended in November of 2016, apologized publicly to Flynn.

The judge then questioned the prosecution as to whether Flynn's actions were even a crime.  When the prosecution maintained that they might be a violation of the 1799 Logan Act, Sullivan laughed at the contention.

The Delay

Sullivan wanted the delay as much as Flynn.  The judge who already doesn't like Mueller for his Ted Stevens’ actions now has new reasons to despise him, and thanks to Mueller himself, legal justification for giving him a smack.

Mueller’s actions not only challenged Judge Sullivan’s authority by twice illegally defying his orders but they probably also led to the judge’s confusion as to when Flynn’s representation of Turkey ended, hence, Sullivan’s “treason” comment. 

Perhaps, with a three-month delay before the Flynn sentencing comes up again, Sullivan will no longer be angry. 

But I doubt it.  It is more likely that the judge will use the interregnum to devise a better and more effective way to completely humiliate the arrogant, godlike Mueller for his blatant prosecutorial abuse.

William L. Gensert can be found on Twitter @williamlgensert  He can be reached at and will answer all emails that do not threaten family and friends – given enough time.