What to Know
- Last year, Michael Flynn pleaded guilty to lying to the FBI about his contacts with Sergey Kislyak, then Russian ambassador to the U.S.
- President Donald Trump signaled his intense interest in the case with a "Good luck" tweet to Flynn on Tuesday
- Flynn cooperated extensively and largely eschewed the aggressive tactics of others involved in the Mueller probe, until last week
A federal judge postponed Michael Flynn's sentencing for lying to the FBI after a dramatic hearing in which he told the former Trump national security adviser, "arguably, you sold your country out," and warned him he could receive jail time despite his cooperation with prosecutors.
U.S. District Judge Emmet Sullivan asked prosecutors in a Washington, D.C., courtroom if Flynn could have been charged with treason — he later clarified he wasn't suggesting Flynn be charged with that crime — and said that he "can't hide my disgust, my disdain" for Flynn's crime of lying to FBI agents about his Russian contacts while in the White House, to which he has pleaded guilty.
The court went into recess for 30 minutes after Sullivan asked Flynn if he wants to postpone his sentencing so that he can get full credit for cooperating with prosecutors from special counsel Robert Mueller's office, who told the judge Flynn may still be helping with ongoing cases.
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After the recess, defense attorney Robert Kelner noted that there was a possibility that Flynn might be asked to testify in another case involving a business associate.
"We are prepared to take your honor up on the suggestion of delaying sentencing," Kelner said. Sullivan accepted it, adjourning the court after setting a status hearing in March.
Flynn didn't comment as he left the courthouse.
Later Tuesday, the judge ordered that should Flynn wish to travel outside of a 50-mile radius from Washington he must first notify the court, effective Jan. 4.
The hearing began with Flynn turning down the opportunity to challenge the circumstances of the interview or withdraw his guilty plea — Flynn's lawyers had suggested that investigators discouraged him from having an attorney present during the January 2017 interview and never informed him it was a crime to lie.
Prosecutors had shot back, "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."
On Monday evening, the dispute — and a judge's intervention — led prosecutors to publicly file a redacted copy of the notes from Flynn's FBI interview that largely bolster the case, showing he told agents things he later said were false.
In court, Tuesday Sullivan asked if Flynn continues to accept responsibility for his actions. Flynn replied, "I am, your honor."
Flynn's defense team said their filings were meant to distinguish their case from others in the Mueller probe.
"This is a very serious offense," Sullivan said. "A high-ranking senior official of the government making false statements to the Federal Bureau of Investigation while in the White House."
President Donald Trump signaled his intense interest in the case with a "Good luck" tweet to Flynn before the hearing on Tuesday. He added: "Will be interesting to see what he has to say, despite tremendous pressure being put on him, about Russian Collusion in our great and, obviously, highly successful political campaign. There was no Collusion!"
Asked about the sentencing delay, White House press secretary Sarah Huckabee Sanders said, "We wish General Flynn well and we'll continue to focus on doing what we do here every single day."
She said "there's certainly concern" about the fact that Flynn lied to members of Trump's government and advocated for another government during the campaign — Flynn has provided prosecutors with records from his business, Flynn Intel Group, which carried out lobbying work for Turkey during the campaign. Two of Flynn's associates were charged for the work, though Flynn was not.
The mere insinuation of underhanded tactics has been startling given the seemingly productive relationship between the two sides, and it was especially striking since prosecutors have praised Flynn's cooperation and recommended against prison time. The defense arguments spurred speculation that Flynn may be trying to get sympathy from Trump or may be playing to a judge known for a zero-tolerance view of government misconduct.
"It's an attempt, I think, to perhaps characterize Flynn as a victim or perhaps to make him look sympathetic in the eyes of a judge — and, at the same time, to portray the special counsel in a negative light," said former federal prosecutor Jimmy Gurule, a University of Notre Dame law school professor.
Until the dueling memos were filed last week, Flynn had cooperated extensively and largely eschewed the aggressive tactics of others involved in the Mueller probe.
Prosecutors, for instance, have accused former Trump campaign chairman Paul Manafort of lying to them even after he agreed to cooperate. Another potential target, Jerome Corsi, leaked draft court documents and accused Mueller's team of bullying him. And George Papadopoulos, a Trump campaign adviser recently released from a two-week prison sentence, has lambasted the investigation and publicly claimed that he was set up.
But then came Flynn's sentencing memo.
Although Flynn and his attorneys stopped short of any direct accusations of wrongdoing, they suggested the FBI, which approached Flynn at the White House just days after Trump's inauguration, played to his desire to keep the encounter quiet and as a result kept him from involving a lawyer.
They also insinuated that Flynn deserves credit for not publicly seizing on the fact that FBI officials involved in the investigation later came under scrutiny themselves. Former Deputy Director Andrew McCabe, who contacted Flynn to arrange the interview, was fired this year for what the Justice Department said was a lack of candor over a news media leak. Peter Strzok, one of the two agents who interviewed Flynn, was removed from Mueller's team and later fired for trading anti-Trump texts with another FBI official.
Mueller's team sharply pushed back at any suggestion that Flynn was duped, with prosecutors responding that as a high-ranking military officer steeped in national security issues Flynn "knows he should not lie to federal agents."
Trump has made no secret that he sees Mueller's investigation as a "witch hunt" and has continued to lash out at prosecutors he sees as biased against him and those who help them. He's shown continued sympathy for Flynn, though, calling him a "great person" and asserting erroneously last week that the FBI said he didn't lie.
Arun Rao, a former Justice Department prosecutor in Maryland, said the defense memo was striking because it's "inconsistent" with Flynn's cooperative stance so far.
"You also wonder in this very unusual situation," he said, "whether it is a play for a pardon."