Michael Flynn learned that incorporating crackpot Trumpers' conspiracy theories in your legal brief can get you jailed. Flynn’s lawyer, by including in his sentencing brief the suggestion that President Trump’s former national security adviser had been entrapped or tricked into making false statements to the FBI, put his client at risk of serving real jail time. That’s the difference between spouting nonsense on state TV and doing so in the realm of the law: In the latter, facts and truth matter, and people are held accountable for what they do and say.
We should remember that Flynn was given no guarantee that he would avoid jail time. Former federal prosecutor Joyce White Vance tells me: “A plea agreement always explicitly states that the agreement is not binding on the judge. And although judges typically go along with the term’s of a plea agreement . . . it’s not impossible for a judge to disagree with the deal the parties have struck and try to insert his own judgment in its place.”
One way to incite a judge to disregard a plea is to convey the sense the defendant is pleading guilty, but isn’t really accepting his guilt. That’s what happened in court. Judge Emmet G. Sullivan, however, concluded that the crimes Flynn was prosecuted or, if not treason as he inquired, were of such seriousness that jail time might be appropriate.
As former White House ethics counsel Norman Eisen explains: “Judges are, of course, the ultimate guardians of our rule of law and Judge Sullivan demonstrated that.” Sullivan, Eisen contends, “implicitly but definitively rejected the efforts of some Trump supporters to minimize or even dismiss Flynn’s crimes.” That’s what a judge is there to do — to exercise his own judgment.
“Although it stirred up some controversy, he was right to ask the treason question, too,” Eisen asserts. “While as a technical matter one can debate whether Flynn’s conduct was treason because we are not at war with Russia, there can be little doubt that it was treasonous — that is, a profound betrayal of his country’s best interests, including while Flynn was sitting in the White House.” He concludes: “We should be shocked by all of this, and the judge recognized the seriousness of the situation. That starkly contrasts with the president’s attitude, wishing Flynn a sunny ‘good luck’ by tweet this morning as if he were going off to play softball.”
Trump disregards the judge’s actions at his own peril. “One striking point in the wake of the drama: the White House doubled down on the talking point that Flynn is not in such hot water,” observes former federal prosecutor Harry Litman. After Flynn was forced to eat his (and his lawyer’s) words, out trotted Sarah Sanders at the White House to claim that Flynn was “ambushed.” No one — the judge, the special counsel nor Flynn — now think that is the case. The utter disdain with which Sanders and her boss view both facts and the rule of law won’t serve them well in the long term. (As for Flynn, he might be asked about the White House’s statements when he returns for sentencing. That will be, well, awkward.)
Trump’s habit of refusing to accept blame, attacking law enforcement and spinning conspiracy theories may put him in serious trouble with prosecutors and judges going forward. Rationalizing felonies as insignificant or as paperwork violations won’t shield him from legal peril, but such conduct highlights Trump’s unfitness to lead.
The president heads the executive branch, so his (and his aides') efforts to minimize law-breaking demonstrates that the basic requirements of his job (to take “just care” that laws are "faithfully executed”) are beyond Trump’s abilities. He obviously misunderstands his role, which is to enforce laws. All of them.