And Sullivan likely had seen all the chatter in the Fox News echo chamber about the alleged “perjury trap” special counsel Robert S. Mueller III had set for Flynn — an attempt to discredit the entire investigation. If the judge accepted the recommendation from prosecutors not to sentence Flynn to prison time because of his cooperation, Flynn would be free to leave the courthouse and hold a news conference claiming he had been set up.
But Sullivan was having none of it. First, he required Flynn to acknowledge repeatedly that he accepted a guilty plea and took responsibility for making false statements. The judge then struck a potent blow for the rule of law.
“Not only did you lie to the FBI, you lied to senior officials in the incoming administration,” Sullivan told a startled Flynn. Beckoning to the flag, the judge continued: “All along, you were an unregistered agent of a foreign country while serving as the national security adviser to the president of the United States. Arguably, that undermines everything this flag over here stands for. Arguably, you sold your country out.”
Sullivan even asked whether Flynn’s behavior “rises to the level of treasonous activity. . . . Could he have been charged with treason?”
Flynn’s lawyers asked for a postponement of sentencing — a good move, given Sullivan’s threat that, despite prosecutors’ recommendations, he might lock Flynn up.
Sullivan later qualified his harshest language — he was not accusing Flynn of treason, and he knew Flynn didn’t work as a foreign agent in the White House — but his passion on the bench was a much-needed corrective from the federal judiciary.
Trump and his advisers have defended themselves by attacking the rule of law and the impartiality of judges, calling FBI agents Nazis, the Justice Department corrupt and Mueller’s team politically motivated fraudsters. Mueller, properly, has not responded publicly. But Sullivan was in a position to speak out, and he did.
His standing to do so is beyond question. He was appointed by President Bill Clinton to the federal bench but by Presidents Ronald Reagan and George H.W. Bush to D.C. judgeships, and he has a reputation for shredding prosecutors. When he learned that a mother and child were being flown out of the country while their asylum case was pending, he ordered prosecutors to “turn that plane around.” I watched him eviscerate prosecutors over their “shocking” misconduct during the prosecution of former senator Ted Stevens
This is why Fox News’s Jeanine Pirro had dared to hope that Sullivan, because of his “track record of calling out prosecutorial misconduct,” might topple “the house of cards of Robert Mueller,” as The Post’s Aaron Blake pointed out. Trump, who gave Flynn a “good luck” tweet, had called it “a great thing that the judge is looking into that situation” of Flynn’s treatment.
But the conduct Sullivan called out was that of Flynn and his lawyers, who in their sentencing memo noted that Andrew McCabe and other FBI officials “decided the agents would not warn Flynn that it was a crime to lie during an FBI interview because they wanted Flynn to be relaxed, and they were concerned that giving the warnings might adversely affect the rapport.” Flynn’s team argued that this was different from the warnings given to others.
Prosecutors, in turn, asked Sullivan to “reject the defendant’s attempt to minimize the seriousness of those false statements to the FBI. A sitting national security adviser, former head of an intelligence agency, retired lieutenant general and 33-year veteran of the armed forces knows he should not lie to federal agents. He does not need to be warned it is a crime to lie to federal agents to know the importance of telling them the truth.”
Sullivan embraced that thinking in saying he was “concerned” about the Flynn brief questioning the circumstances of his guilt, telling Flynn he was “not hiding my disgust, my disdain, for your criminal offense.”
Some will criticize Sullivan for his heated language and for threatening Flynn with a harsher sentence than even prosecutors want. But the judge’s bold stand was worthy of another on the same court who, nearly half a century ago, was accused of overstepping his bounds during the Watergate cases. Higher courts, and history, ultimately vindicated John Sirica’s belief that he shouldn’t be “sitting on the bench like a nincompoop and watching the parade go by.”
Sullivan, in his righteous defense of truth, honored that noble tradition.