Michael Flynn's Lawyers Appear to Have Badly Miscalculated

Michael Flynn’s Lawyers Appear to Have Badly Miscalculated
Judge Emmet Sullivan expressed “disdain” and “disgust” for Flynn’s crimes and, despite the government’s request for leniency, postponed a status hearing until March.
Natasha BertrandMadeleine Carlisle
4:17 PM ET

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In a sentencing memo filed last week, Flynn’s lawyers Robert Kelner and Stephen Anthony indicated that the FBI agents who interviewed the former national security adviser in January 2017 about his conversations with the former Russian ambassador Sergei Kislyak had entrapped him, lulled him into a false sense of security, and failed to insist that he have a lawyer present for the interview.

Judge Emmet Sullivan, however, who was set to issue Flynn’s sentence on Monday, was not sympathetic. “How is raising these points consistent with accepting responsibility?” he asked Flynn and his lawyers as they stood before him at the lectern on Tuesday. He then lambasted Flynn for lying to federal agents on White House grounds while serving as the president’s top national security adviser in January 2017, and for lying about his lobbying work for the Turkish government. “Arguably, you sold out your country,” Sullivan said. He added that while he would take Flynn’s 33-year public service career and cooperation into account when sentencing him, he would not try to hide his “disdain” and “disgust” for Flynn’s crime, and asked the government at one point whether Flynn’s conduct rose to the level of treason.

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Sullivan’s disdain stood in stark contrast to the government’s characterization of Flynn in its sentencing memo as a star witness who had provided “substantial” assistance to at least three ongoing investigations. Prosecutor Brandon Van Grack said in court on Tuesday that the government believed Flynn had fully accepted responsibility for his conduct. But the implication by Flynn’s lawyers that Flynn had been entrapped by the bureau hung in Sullivan’s mind.

“I don’t know what his lawyers were thinking,” said Nick Akerman, a former Assistant U.S. Attorney, former Assistant Special Watergate Prosecutor, and a partner at Dorsey and Whitney. As a defense lawyer, “you really ought to be in the position of complete contrition and saying, ‘Look, my client did something that was wrong, he made up for it, he’s cooperated,’” Akerman said. “To take the tack that somehow the government was at fault here is completely absurd.” There is “no question whatsoever” that Flynn’s lawyers miscalculated, said former federal prosecutor Renato Mariotti. “The judge rightly saw that there was no misconduct by the government and appropriately criticized Flynn’s apparent failure to accept responsibility for his criminal activity,” he added.

Mimi Rocah, a former federal prosecutor in the Southern District of New York, agreed that Flynn’s lawyers had clearly made a “very misguided appeal” to Sullivan. But she noted that it may also have been a play for a pardon from President Trump. “Maybe on some level, this was an appeal to Trump and his base,” Rocah said. Mark Zaid, a national security attorney in Washington, D.C., said that if the defense’s strategy was to send a message to the president, only “time will tell” whether that strategy was sound. “But that’s more a long term political strategy, and I would imagine in the short term Flynn is far more interested in knowing whether or not he can avoid jail,” Zaid said.

Kelner, Flynn’s lawyer, asked that the judge not hold the sentencing memo against their client. “General Flynn recognizes the obligations that came with higher office, and that this is a serious offense,” Kelner said. “We don’t mean to dispute that.” The president has not tried to hide his continued support for Flynn, and has lamented that Flynn was treated unfairly by the FBI. “Good luck today in court to General Michael Flynn,” Trump tweeted on Tuesday.White House Press Secretary Sarah Sanders said on Tuesday that Flynn had been “manipulated” by the bureau. Mueller’s office shot back at any claim of wrongdoing by the FBI in a response to Flynn’s lawyers released last week. “A sitting National Security Advisor, 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,” they wrote.

Sullivan’s harsh words nearly an hour into his sentencing hearing seemed to unnerve Flynn, who had appeared confident up until that point in his decision to proceed with sentencing before all of his cooperation with the government was over. “Yes,” he responded loudly, when the judge asked for the third time whether he would like to meet with his lawyers to reconsider moving forward. Ultimately, Sullivan postponed a status hearing on Flynn’s cooperation until March 13.

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https://www.theatlantic.com/politics/archive/2018/12/michael-flynns-sentencing-delayed-mueller-probe/578467/