Flynn sentencing hearing devolved into a fiasco
It was a bad day all around yesterday in Judge Emmet Sullivan's courtroom. Bad for General Flynn, bad for Judge Sullivan, and bad for the prosecutors from Robert Mueller's Special Counsel's Office (SCO).
The Washington Post exults that "Trump backers just had their anti-Mueller hopes and dreams dashed" in the wake of yesterday's sentencing hearing for General Michael Flynn. Judge Emmet Sullivan not only failed to throw out the case against Flynn for lying to the FBI, but he threatened incarceration for the general, despite the recommendation of the SCO for no prison time.
Judge Emmet Sullivan (official portrait).
Judge Sullivan first made sure that Flynn was wittingly making a guilty plea, for his lawyers had raised the specter of entrapment. Given his history of throwing out a guilty verdict against Senator Ted Stevens for prosecutorial misconduct, it is quite possible that the judge might have thrown out the case had Flynn changed his plea. But given the possibility of other charges being brought against him (and his son) by Team Mueller, Flynn stuck with his guilty plea, probably fearing a far worse fate ahead even if cleared of lying during the January 2017 White House interview.
That meant that Judge Sullivan had to treat Flynn as guilty of a serious crime, no matter what doubts he may or may not have had about the conduct of the prosecutors.
In no way was it a good day for Flynn, who now faces another sentencing hearing in March next year, pending testimony in cooperation with the SCO, and has also been subsequently ordered by Judge Sullivan to turn in his passport and remain confined to a 50-mile radius of Washington, D.C. – starting January 4, 2019, which allows the general to take a previously planned vacation abroad. However, this tempering seems to indicate that the judge does not believe that Flynn is a flight risk and is in fact not anxious to do more than the minimum expectation of restrictions on a defendant facing what the judge called "a very serious offense" – lying to the FBI – to which he pleaded guilty.
It was not a good day for Judge Sullivan, either. He confused the timing of the facts presented to him and accused Flynn of working for a foreign government while employed as national security adviser, even raising the specter of treason, only to back away from that term subsequently. Techno Fog has the official transcript:
Here's Judge Sullivan's HUGE screw up, accusing Flynn of being an agent of a foreign gov't "while serving as National Security Advisor."— Techno Fog (@Techno_Fog) December 19, 2018
"Arguably, you sold your country out."
What a horrific, embarrassing mistake by the judge in a high profile case. Unacceptable. pic.twitter.com/dvLwUUPzwj
Proceeding on this false premise is what led the judge to threaten incarceration:
Judge Sullivan is worked up.— Techno Fog (@Techno_Fog) December 19, 2018
I can't make any sentencing guarantees, "but I'm not hiding my disgust, my disdain for this criminal offense." (Referencing the mistaken FARA/NSA accusation.)
A case about false statements has a Judge making false statements at sentencing. pic.twitter.com/9RoFglaNXV
The judge's mistake on the dates of Flynn's lobbying is disturbing, as it suggests insufficient preparation, as well as recklessness about speaking in open court. But intentional or not (and I do not rule out Judge Sullivan planning this), the raising of treason elicited from the prosecution a denial that treason was at issue, taking it off the table.
But the SCO did not emerge unscathed, either. Judge Sullivan seems skeptical about the legitimacy of the interview that led to charges of lying to the FBI. Yesterday, Mark Wauck explained on these pages that absent a criminal investigation, there was no legitimate purpose for the FBI to interview Flynn. Judge Sullivan asked the prosecution directly what crime was suspected, and the answer drew his derision:
Judge brings up the Logan Act - the Act"that no one has ever been prosecuted under"— Techno Fog (@Techno_Fog) December 19, 2018
The Special Counsel hedges.
The facts could "potentially support a violation of the Logan Act" but the gov't isn't considering it. pic.twitter.com/6nm3oyKfkC
So it appears that Judge Sullivan has more questions than answers about the conduct of both sides.
As do I.