Michael Flynn’s sentencing for lying to the FBI was postponed on Tuesday after a federal judge suggested all sides wait until President Donald Trump’s former national security adviser is finished cooperating with special counsel Robert Mueller’s probe.
The surprise outcome came after an unexpectedly contentious hearing, in which U.S. District Court Judge Emmet Sullivan repeatedly admonished Flynn, telling him, “Arguably, you sold your country out,” drawing gasps and head shakes from members of Flynn’s family sitting in the courtroom.
Flynn — wearing a dark suit, striped tie and standing erect but speaking quietly while addressing the judge — was in court to be sentenced after pleading guilty late last year to lying about the subject of conversations he had with high-ranking Russian officials during the 2016 transition. His sentencing will now likely come sometime in 2019, when he could become the first former senior Trump administration official to go to jail as part of Mueller’s wide-ranging investigation into Russian interference in the last presidential election.
Flynn has also acknowledged that he lobbied for the Turkish government during the election campaign without registering as a foreign agent, although he has not been charged in that case.
“Arguably,” Sullivan said at Tuesday’s hearing, “that undermines everything that flag over here stands for.”
After about an hour of back and forth with Flynn and his lawyers, as well as Mueller’s team, Sullivan called an abrupt recess to give Flynn and his lawyers more time to consider whether they wanted to proceed with the sentencing.
Sullivan, an appointee of President Bill Clinton, indicated he is not always comfortable meting out punishment to people who are still cooperating with authorities. The judge also said he was not obliged to follow Mueller’s recommendation that Flynn get little or no prison time for pleading guilty.
During the recess, Flynn’s family continued to express dismay at Sullivan’s harsh remarks, with one whispering incredulously, “Flag?! He served for 33 years.”
After the break, Flynn attorney Robert Kelner said Flynn would accept Sullivan’s offer to postpone sentencing so they can “eke” out every drop of cooperation benefit.
“I’m not promising anything,” Sullivan replied.
Kelner noted that Flynn had purposefully remained silent about discussing the Mueller investigation and attempted to draw a contrast with other unnamed people pulled into the probe who have spoken with reporters and lashed out at the 19-month-old Russia probe.
“Gen. Flynn has held nothing back, nothing,” Kelner said.
Flynn pleaded guilty in December 2017 for lying to the FBI during a White House interview just days after the Trump inauguration. His crime: mischaracterizing conversations he had with then-Russian Ambassador Sergey Kislyak about the Obama administration’s sanctions over Moscow’s meddling in the 2016 election.
On Monday night, Mueller’s team released a redacted FBI readout of its interview with Flynn, showing that the agents offered reminders to the national security adviser about the subjects he might have discussed with Kislyak, such as sanctions. Releasing the notes was the latest attempt to show that the FBI agents acted properly during the sit-down.
Sullivan opened Tuesday’s hearing offering Flynn a chance to formally back out of his guilty plea in light of concerns his attorneys had raised in their presentencing memo about whether their client was aware that his FBI interview, which took place without a lawyer, could lead to his prosecution for lying.
The judge said he “cannot recall any incident in which the court has accepted a plea of guilty from someone who maintained he was not guilty, and I don’t intend to start today.”
Flynn’s lawyers replied that they raised the point only in a bid to distinguish their client’s legal situation from those of two people already sentenced in the Russia probe who did have lawyers present for their FBI interviews: former Trump campaign adviser George Papadopoulos and the Dutch attorney Alex Van Der Zwaan. Papadopoulos was released earlier this month from federal prison after a 14-day sentence, while Van Der Zwaan spent 30 days in prison before being deported.
After striking a plea deal with Mueller’s team, Flynn sat for 19 interviews with Mueller and other government prosecutors. While Mueller’s prosecutors redacted most details about Flynn’s assistance, they noted he provided “firsthand information” on interactions between Trump’s transition team and the Russian government.
During Tuesday’s hearing, Mueller prosecutor Brandon van Grack said “it remains a possibility that Gen. Flynn is continuing to cooperate at this point.”
As he digested the open-ended nature of Flynn’s cooperation, the judge asked Mueller’s prosecutors whether Flynn could have been indicted for treason.
“That was not something we were considering, at the time, charging the defendant,” van Grack replied.
After the brief recess, Sullivan cautioned observers: “Don’t read too much into the questions I asked. I’m not suggesting he committed treason.”
In the audience, Flynn’s family made audible sighs of relief. “Write that down,” Barbara Flynn Redgate, Flynn’s sister, whispered to reporters behind her.
Flynn’s cooperation has played a role in at least one new round of federal prosecutions, van Grack said.
On Monday, a federal court in Alexandria, Va., unsealed a grand jury indictment against two of his former business partners. They were charged with conspiracy and acting as unregistered foreign government agents for their efforts to get a Turkish cleric extradited from the United States.
Flynn is mentioned nearly 40 times in the indictment unsealed Monday, and van Grack said Flynn could have also been charged in that case. Kelner, meantime, told Sullivan that he expects his client will be asked to testify if there’s a trial.
Flynn’s attorneys had pleaded for no jail time for their client by noting his 33 years of military service, including combat duty for five years. He also spent two years atop the Defense Intelligence Agency during the Obama administration, though that job ended in 2014 after he clashed with the CIA and senior Pentagon officials and shocked some of his colleagues with his increasingly strident views about Muslims.
A registered Democrat, Flynn signed onto Trump’s campaign as an adviser in February 2016 and later saw his stock soar as a potential running mate due to his national security credentials. At the Republican National Convention, Flynn led a memorable “Lock her up” chant about Hillary Clinton.
The retired general’s rise under Trump didn’t come without red flags. President Barack Obama personally warned Trump two days after the 2016 election against hiring Flynn because of his erratic behavior. And Sally Yates, the acting attorney general who served briefly in that role after Trump’s inauguration, also raised concerns to the Trump White House about Flynn’s contacts with the Russian ambassador.
Flynn originally insisted to his administration colleagues that the calls with Kislyak were a simple exchanges of pleasantries — a line that senior officials used publicly. Ultimately, Trump’s White House fired Flynn just over three weeks into the administration for misleading Vice President Mike Pence about his conversations with the Russian official.
In his guilty plea, Flynn admitted that his calls with Kislyak included a discussion of the recently imposed sanctions.
Some of Flynn’s allies, including family members, Republican lawmakers and Trump himself, have claimed that the former Trump official was essentially set up by the FBI, arguing the agents urged Flynn to answer questions without a lawyer and intentionally failed to warn him that lying to the FBI was a crime.
But Mueller’s team rebutted those claims by noting the FBI officials followed proper interview protocol, releasing the detailed notes of bureau agents about the White House interview.
Trump fanned the flames of the theories about FBI misconduct, suggesting recently that the FBI never accused Flynn of lying in its probe and wishing Flynn “Good luck” ahead of Tuesday’s hearing.
The remarks came a few days after Trump wrote that Mueller’s prosecutors “gave General Flynn a great deal because they were embarrassed by the way he was treated — the FBI said he didn’t lie and they overrode the FBI.”
Trump’s characterization, however, does not square with the fact both Mueller and Flynn agreed in court that he did lie to the bureau. The FBI has also never concluded Flynn didn’t lie.
“Maybe he did do those things, but it had nothing to do with the president,” White House press secretary Sarah Huckabee Sanders said during a Tuesday afternoon briefing.
Trump’s private comments about the Flynn investigation have also become part of a Mueller probe into whether the president obstructed attempts to investigate Russian interference. According to James Comey, the president pleaded with the then-FBI director in February 2017 to go easy on Flynn, an interaction Mueller is now examining.
Later Tuesday, Sullivan set new travel limits on Flynn starting Jan. 4, including ordering him to surrender his passport and requiring that he stay within 50 miles of the Washington, D.C., area unless he gets explicit court permission.
Earlier, as he wrapped up the morning hearing, Sullivan made a brief digression to comment on another high-profile case involving a retired military official: Gen. David Petraeus.
The former CIA director got two years’ probation and a $100,000 fine in 2015 after pleading guilty to sharing classified information with a girlfriend and biographer.
“Let me just say this, I probably shouldn’t, I don’t agree with Gen. Petraeus’ sentence,” Sullivan said. “Maybe there were extenuating circumstances. I don’t know. It’s none of my business.”
After running through some housekeeping issues related to the Flynn case, including setting a March 13 date for the lawyers to file their next status report, Sullivan adjourned the hearing, saying “happy holidays.”
As the hearing was wrapping up, members of Flynn’s family could be overheard joking that they should go grab a drink. They then exited the courthouse, only to be greeted by dueling protesters trying to drown each other out with chants of “Lock him up!” and “U.S.A.!”