A crowd of supporters outside the E. Barrett Prettyman Courthouse in downtown Washington, D.C., began singing “God Bless America” when Michael Flynn, sporting a tight military haircut and a red striped tie, arrived Tuesday morning for his sentencing hearing. Inside the courtroom, however, U.S. District Judge Emmet G. Sullivan was unexpectedly hostile. “I’m not hiding my disgust, my disdain for this criminal offense,” Sullivan told the former national security adviser at one point. At another, he asked if Flynn had committed treason.
Former federal prosecutors I spoke with were shocked. Flynn, after all, has been assisting special counsel Robert Mueller’s investigation for months, after pleading guilty last December to lying to the F.B.I. about his Russian contacts. Last week, Mueller had recommended that Flynn receive no more than six months in prison, as a result of his “substantial cooperation.” On both sides of the political aisle, the expectation was that Flynn—potentially Mueller’s star witness in his Russia probe—would get off with a slap on the wrist. Right-leaning commentators in particular hoped that Sullivan might be sympathetic to the argument, widespread in conservative media, that Flynn had been duped or entrapped by the F.B.I.
Shortly before the 11 A.M. hearing, former assistant U.S. attorney Patrick Cotter offered a word of caution. “U.S. District Court judges are the beings most like divine right kings left on the planet: life tenure and they suffer no consequences for doing whatever they want,” he told me. “It is always risky to predict what any one of them might do.”
That warning turned out to be prescient: after calling Flynn a traitor and threatening him with more prison time, Sullivan unexpectedly postponed sentencing until Flynn had completed his cooperation agreement with Mueller. “He did not follow the expected script,” Cotter admitted, hours later.
Whatever prompted Sullivan to go off-book, the suggestion by Flynn’s lawyers that their client had been the victim of entrapment, and therefore should not receive any jail time, definitely didn’t help. In a 178-page sentencing memo filed last week, they had noted that F.B.I. investigators did not warn Flynn that lying to the bureau was a felony, and that he did not have lawyers present during his questioning. Sullivan was not impressed. In court on Tuesday, the judge responded by repeatedly asking Flynn to confirm his guilty plea and giving him several opportunities to change his mind.
“It was, obviously, a blunder for Flynn to take up the call in the conservative media that he had been entrapped, and Judge Sullivan made him eat it bite by bite and terrified him, essentially, into withdrawing any suggestion that had been latent or expressed in the memo,” Harry Litman, a former U.S. attorney, told me. “Sullivan was on the warpath.”
The decision by Flynn’s lawyers to try to wriggle out of their plea, Litman added, always struck him as bizarre. “I had thought that the move on Flynn’s part was perplexing because he had opted from the moment of apprehension to cast his lot 100 percent with Mueller and he has been richly rewarded,” he continued. “So why in that instance he would want at the last minute to spurn the embrace of Mueller, who had been so straight up with him and so true his bargain, was a mystery. But I think the answer was it was a mystery and a blunder. He shouldn’t have done it.”
Indeed, the sentencing hearing could hardly have gone worse. Sullivan noted that in his opinion, former C.I.A. director David Petraeus, who received two years probation and a fine for leaking classified information, had gotten off too easy. At another point, Sullivan asked prosecutors whether Flynn could have been charged with treason. (He later walked back the reference. “Don’t read too much into the questions I asked,” he said.)
Flynn’s lawyers had previously compared the client’s case to that of George Papadopoulos, the former Trump campaign staffer who recently served 12 days in prison for the same crime—lying to federal investigators in the Russia probe. But Sullivan appeared to reject the reasoning behind the comparison. As a “high-ranking official of the government,” the judge said, Flynn should have known that making false statements was a criminal offense.
“It goes to this issue of intent,” Cotter told me. “His intent, being a sophisticated person who had been in government at the highest levels for many years, it was never credible for him or his lawyers to suggest that somehow he didn’t understand that when you talk to the F.B.I. that you really shouldn’t lie to them.” Papadopoulos, Cotter said, was “the jejune, naive, to use the latin term—knucklehead who got in over his head, clearly didn’t understand what he was doing or why he was doing it.” Flynn, who served for more than two years as the director of the Defense Intelligence Agency and is a retired Army general, would presumably have known that when the F.B.I. asked him a question about his contacts with Russian officials, he was duty-bound not to lie—and could be held criminally responsible if he did.
Given all the factors weighing against him, Flynn might be relieved that Sullivan ended his diatribe by delaying the sentencing, rather than doling out the maximum. After an unplanned recess around noon, Flynn’s lawyers Robert Kelner and Stephen Anthony accepted the judge’s offer. Flynn must continue to cooperate with Mueller’s investigation until March.
The new deal is likely to inject fresh anxiety into the White House, where staffers are already deeply worried over the next shoe to drop in the Russia probe. As John Marston, a former assistant U.S attorney in Washington, D.C., told me, the defense must feel “that there is still some ‘juice’ in the cooperation.”
How much juice, and what it will yield, remains to be seen. Flynn’s lawyers previously said their client had spent more than 60 hours interviewing with the government, and had produced thousands of documents related to a series of ongoing investigations. In a sentencing memo earlier this month, Mueller signaled that he was pleased with Flynn’s cooperation to date. “A sentence at the low end of the guideline range—including a sentence that does not impose a term of incarceration—is appropriate and warranted,” the memo reads. What more does Sullivan think Flynn could say?
That question is now one of the central mysteries hanging over the Flynn case. “You can’t walk into the government and say, ‘I am feeling like I need a little more juice with the sentencing judge, let me cooperate some more’—It is kind of up to the prosecutors,” Cotter observed. “That could be a challenge . . . I don’t know that that is going to happen.”
Perhaps Flynn could find himself testifying in court against other individuals Mueller may indict in the Russia probe. It’s “one thing they could do that could dramatically change the playing field,” Cotter told me. The public may have to wait until March to see. As he left the bench, Judge Sullivan had a parting message for the courtroom and Flynn: “Happy holidays.”