After Michael Flynn’s months of cooperation and more than a dozen meetings, special counsel Robert S. Mueller III argued this month that Flynn should receive no prison time for his substantial assistance in the Russia investigation.
A veteran judge saw things differently.
U.S. District Judge Emmet G. Sullivan upended the former national security adviser’s hopes of avoiding jail at the sentencing hearing Tuesday, assuring courtroom spectators that he — and only he — would be the final arbiter.
“I’m not hiding my disgust, my disdain for this criminal offense,” Sullivan said as he laid into Flynn, before opting to deviate from Mueller’s recommendation of no jail time.
Flynn resigned from his White House position in February 2017, amid accusations that he misled Cabinet members about his contacts with Russia. He was the first of five aides to President Trump to plead guilty in the special counsel investigation of Russian interference in the 2016 presidential campaign. After admitting in December 2017 that he lied to federal agents, Flynn began cooperating with the investigation.
The judge also said he saw through last-minute suggestions by Flynn’s attorneys alleging the former general was duped into lying by the FBI. To Sullivan, that seemed like a misfired attempt to minimize or distract from the underlying conduct.
“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!” he said. “Arguably, that undermines everything this flag over here stands for. Arguably, you sold your country out!”
Sullivan’s statements Tuesday sent several severe messages:
Flynn now stands at the mercy of the court. In Sullivan’s courtroom, lying to federal agents, which Flynn’s supporters have dismissed as a minor “process crime,” constitutes a serious offense.
Is the judge allowed to ignore Mueller’s no-jail-time recommendation?
Several former prosecutors said that it’s uncommon for a judge to deviate from the government’s sentencing recommendation. It’s particularly unusual where the federal sentencing guideline range is zero to six months, as it was for Flynn, a first-time offender.
The guidelines were a 1984 effort by Congress to make the process more equitable. The concern was that there were years-long disparities at sentencing for similar crimes. The new rules created levels of offense seriousness — the more serious the crime, the higher a mandatory minimum and maximum length of imprisonment.
The judiciary was bound by these guidelines until 2005, when the Supreme Court ruled they were advisory. Today, judges are not required to follow them, though they often do.
When negotiating plea deals, prosecutors’ recommended sentences also fall within the guideline framework. Abusing a position of power could justify an increase. Substantial assistance, meaning that the offender accepted responsibility and cooperated with the government (often helping them build other cases), could lower a sentence.
Many believed that was the arrangement between the Mueller team and Flynn: Because Flynn assisted the Russia investigation, Mueller recommended a non-jail sentence.
Still, Sullivan suggested Tuesday he would likely deviate from Mueller’s position.
“I cannot assure you, if you proceed today, you will not receive a sentence of incarceration,” he said, setting up the possibility he will sentence Flynn to jail.
Former federal prosecutor and Georgetown law professor Paul Butler told The Washington Post in an interview that plea bargains are all-or-nothing operations, and “concern about equal justice under the law is in Sullivan’s DNA.”
“A typical defendant who pled guilty and then tried to backtrack, like Flynn, would lose credit for cooperation because he’s failed to accept responsibility,” Butler said.
Another former prosecutor, Kenneth White, echoed Butler, calling Sullivan’s outbursts “not that surprising.” Earlier this year, Sullivan threatened to hold former attorney general Jeff Sessions and Homeland Security Secretary Kirstjen Nielsen in contempt of court while presiding over an immigration case.
“This is exactly why it’s so hazardous for any defendant to try to shift blame after pleading guilty. Judges are looking for sincere acceptance of responsibility and contrition,” he said. “Part of the judge’s anger is that Flynn’s showing the opposite of acceptance of responsibility, and he already got a sweet deal by pleading to one count. The prosecutor asked for a straight-up walk.”
On Monday, prosecutors in the Eastern District of Virginia charged two of Flynn’s business associates with acting as agents of a foreign government; Flynn confirmed his possible criminal liability in court. Knowing this, Mueller’s team nevertheless allowed him to plead to one count and recommended a sentencing range that could have been a significantly higher.
What does that mean for Flynn?
In the federal system, judges must consider all relevant conduct and circumstances, said former Utah U.S. attorney Brett L. Tolman, adding that judges can deviate from the guidelines where warranted. “You can be charged with 50 crimes, acquitted of 49, and then sentenced on all 50.”
Often the government is the gatekeeper of a defendant’s underlying conduct, but the Russia probe and Flynn’s prosecution are highly public and uniquely political, and Sullivan is receiving information from multiple sources.
Lying to a federal agent carries a sentence of zero to six months in jail, but, Tolman said, if Sullivan believes Flynn’s actions were egregious, the statute permits him to send Flynn to prison for up to five years, the statutory maximum.
Flynn held a position of enormous responsibility, yet he pursued his own interest over those of the United States, Butler said. The judge made clear that was a serious crime. Sullivan even asked special counsel prosecutors whether Flynn could be charged with “treason” — though Sullivan cautioned the crowd to not read too much into his questioning.
Still, he clearly was thinking along those lines.
Flynn’s sentencing hearing was adjourned Tuesday, with Sullivan requesting a status report in 90 days. Flynn’s attorney asked that he be given “every modicum of consideration.” Sullivan said he was “not making any promises” that his position would change.
In context of the current administration and the allegations surrounding Trump’s 2016 presidential campaign, Flynn’s crimes may seem less serious, but, attorney Paul Butler said, to many judges this would be a big deal.
Sullivan, whom Butler called a strong believer in the judiciary as a coequal branch of government, knew his remarks would send a message about the gravity of Flynn’s conduct. He said, “Sullivan has the last word.”