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Michael Flynn’s Legal Team Appears to Have Screwed Up in a Big League Way


There were many takeaways from Tuesday’s wild happenings at the U.S. District Court in Washington, D.C. — the sentencing hearing for former Trump National Security Adviser Michael Flynn that wasn’t. The most glaring takeaway of all is that the strategy of taking issue with the circumstances of the FBI’s Flynn interview appears to have backfired to such an extent that Flynn may now be in jeopardy of receiving a more severe punishment.

While Flynn attorney Robert Kelner said that his client “fully accepts responsibility,” “stands by his guilty plea,” and claimed the circumstances complaint was something he thought the judge “might want to see” for sentencing purposes, it seems Judge Emmet Sullivan was perturbed.

Indeed, it was Flynn’s team who raised the issue in the first place in advance of sentencing, resulting in a blunt response to the contrary from Special Counsel Robert Mueller. One section of Kelner’s memorandum explaining why probation was justified and appropriate was dedicated to the “nature and circumstances of the offense.” It was here that they discussed at length the FBI’s interview tactics.

On the one hand, they said that Flynn “didn’t take issue with the description of the nature and circumstances of the offense contained in the Government’s sentencing memorandum and the Presentence Investigation Report.” On the other hand, they said, “additional facts regarding the circumstances of the FBI interview” were “relevant to the Court’s consideration of a just punishment.”

What ensued were days of cable news segments and Twitter punditry about FBI “entrapment.” As the debate reached a crescendo, Judge Sullivan himself saw fit to order — on the eve of sentencing no less — the special counsel to release the FBI’s notes about the meeting.

This issue took center stage again on Tuesday. Sullivan said that he was “concerned” about the circumstances of the interview and wondered if there were  “issues that may call into question [Flynn’s] guilty plea.” Sullivan then gave Flynn an opportunity to challenge the circumstances of the interview and Flynn said “No.” It was all downhill from there for the defense, raising the question of whether Team Flynn’s request for no jail time, and Mueller’s would-be satisfaction with that result, are still a possibility.

Sullivan tore into Flynn, calling his crime a “very serious one. He also slammed him for having “sold out” America.

“You were an unregistered agent of a foreign country while serving as the National Security Advisor to the president!” he said, incorrectly. “Arguably, this undermines everything this flag over here stands for! Arguably, you sold your country out!”

“I’m not hiding my disgust, my disdain, for this criminal offense,” Sullivan continued.

These are the words of an angry judge.

The judge, seemingly flabbergasted by what unfolded, then wrongly suggested Flynn might have committed treason and promptly walked that back after a brief recess. After things settled down a little, Sullivan didn’t bother to hide his biases.

He declined to make any promises about Flynn’s punishment and said he disagreed with the conclusion of the Gen. David Petraeus scandal. Petraeus pleaded guilty in 2015 to the misdemeanor charge of mishandling classified materials, was slapped with probation and fined.

Flynn, a retired lieutenant general, was scolded by prosecutors for lying to FBI investigators, saying that the sum of his professional experience meant that he knew better than to do so.

That Sullivan mentioned a case where a military member of great distinction skated on serious charges and jail time is noteworthy.

If Sullivan truly saw this gambit from Team Flynn as an attempt to “minimize” his responsibility rather than a casual mention for sentencing purposes, Sullivan might be inclined to send a message.

It’s worth mentioning that Sullivan actually raised the following question today: “My question is, how is raising those contentions about the circumstances consistent with his acceptance of responsibility?”

The end result of the Tuesday hearing was a postponement in Flynn’s sentencing, giving Sullivan more time to brood and familiarize himself with the facts of Flynn’s case. Although the main reason given for the delay was that Flynn continues to cooperate with prosecutors in the Eastern District of Virginia on a case involving his former business partner, it appears that the Flynn’s team also saw that the judge was ready to throw the book at their client and gratefully accepted the delay.

For the foregoing reasons, Flynn’s legal team is taking a bit of heat.

Editor’s note: this post was updated after publication for clarity.

[Image via Saul Loeb/AFP/Getty Images]

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Matt Naham is the Senior A.M. Editor of Law&Crime.