Judge in Flynn case has a history of scrutinizing prosecutorial misconduct
For a full eight minutes, U.S. District Judge Emmet Sullivan read aloud an inventory of Michael Flynn’s lies - describing his “disgust” that President Trump’s national security advisor sought to deceive FBI agents while “on the premises of the White House.”
Flynn, a retired general who is the highest-ranking Trump aide to plead guilty as part of the special counsel investigation, listened tensely, his face tight, as the judge ticked through his misdeeds.
This was not how Flynn’s supporters or Trump thought Tuesday’s sentencing hearing would unfold. They had pinned their hopes on Sullivan, an independent-minded jurist with a history of ferreting out prosecutorial misconduct, as the one who would reveal overreach by special counsel Robert S. Mueller III and the FBI. Some Flynn allies even speculated the judge might toss out Flynn’s guilty plea and clear his name.
Instead, the 71-year-old veteran jurist used his platform to puncture conspiracy theories that paint Flynn as a victim of deep-state persecution. And he reminded the country of a few simple creeds commonly held in courthouses but increasingly dismissed by the president’s allies: Lying to the FBI is against the law. Breaking the law is bad. People who work in the White House are supposed to be held to a higher standard.
“This is a very serious offense,” Sullivan told Flynn, even after Mueller’s prosecutors told the judge they agreed that Flynn should face little to no incarceration because he cooperated with their investigation.
The judge pointed to the American flag behind his bench and told the decorated combat veteran that he had undermined it: “Arguably, you sold your country out.”
Sullivan’s angry lecture from the bench -- and his suggestion that he was willing to throw Flynn in jail -- injected a moment of high drama into the long-running investigation and served as a reminder of the seriousness of the allegations that launched the special counsel investigation.
The move was in keeping with Sullivan’s lack of tolerance for official misconduct, lawyers familiar with his court said.
“Judge Sullivan usually gives prosecutors a hard time, not because they’ve necessarily done anything wrong, but because he holds the government to a very high standard,” said Glenn Kirschner, a former federal prosecutor who has often appeared before Sullivan. “But today, it played out to the disadvantage of the defendant. And why? The defendant was a high-ranking government official who engaged in egregious conduct. And Judge Sullivan turned his wrath on the defendant.”
Sullivan also expressed frustration at a lack of information about what Flynn has given Mueller’s team. Although the special counsel earlier this month credited the formal national security advisor with providing “substantial assistance” on his probe and another criminal investigation, the judge said Tuesday that it was nearly impossible to render a fair decision on Flynn’s sentencing without knowing the details of his cooperation.
At one point, Sullivan accused Flynn of acting as “an unregistered agent of a foreign country, while serving as the national security advisor to the president of the United States.” After a recess, the judge apologized for that assertion, acknowledging that lobbying work Flynn did to benefit Turkey ended before he joined the Trump administration.
Sullivan, the longest-serving active federal judge on the U.S. District Court in Washington, was first appointed to the District of Columbia Superior Court by President Reagan in 1984. He was named to the District appeals court by President George H.W. Bush and appointed to the federal bench by President Clinton.
The product of Houston and Gardner, a storied Washington civil rights law firm, Sullivan is best known for his robust enforcement of the rule that prosecutors must disclose any evidence that could help defendants establish their innocence. Defense attorneys have given him the nickname “Brady,” a reference to the Supreme Court ruling requiring the disclosure of such exculpatory material.
In 2009, Sullivan overturned the bribery conviction of former Sen. Ted Stevens (R-Alaska) after it was discovered that FBI agents and prosecutors had improperly withheld that their key witnesses against him had given differing accounts.
Before the 2016 election, Sullivan had criticized Democratic candidate Hillary Clinton’s use of a private email address while secretary of State, at one point during a public records lawsuit decrying the “drip, drip, drip” of revelations about her email use. “When does it stop?” he wondered.
So Trump’s allies were cheered when Sullivan last week ordered Flynn’s lawyers and Mueller’s team to turn over FBI records detailing agents’ interview with Flynn in January 2017.
His demand came a day after Flynn’s attorneys argued their client deserved no prison time, stressing in a court filing that he had been “unguarded” when telling FBI agents about his conversations with the Russian ambassador during the presidential transition.
Some Flynn allies, including the president, speculated that the judge was probing possible FBI misconduct.
“I think it’s a great thing that the judge is looking into that situation,” Trump told reporters. The president tweeted “good luck” to Flynn early Tuesday.
On Fox News, Trump ally and former judge Jeannine Pirro predicted Sullivan would throw out Flynn’s conviction. The Wall Street Journal published an editorial alleging that the FBI’s treatment of Flynn “reeks of entrapment” and calling on Sullivan to “question the entire plea deal.”
Sullivan did. But not the way they expected.
On Tuesday, nearly a dozen members of Mueller’s team showed up at the downtown Washington courtroom for the hearing, filling the front bench. Flynn, wearing a blue suit, was flanked by his two attorneys.
Sullivan quickly indicated that he was offended by Flynn’s suggestion that he was misled by FBI agents. And he said it appeared that the former national security advisor was trying to have it both ways: to take a generous plea deal even as he telegraphed that he might have been entrapped.
Sullivan said the FBI records -- many of which the judge forced to be publicly disclosed in recent days -- showed Flynn had repeatedly lied to agents, despite knowing it was a crime to do so.
“You understand why” I was concerned, the judge told Flynn’s attorney Robert Kelner. “This sounds like a backpedaling on the acceptance of responsibility.”
Kelner told the judge that he and co-counsel Steven Anthony were trying to show in their filing how Flynn was different from others who have admitted lying to special counsel investigators, noting that agents did not warn him he was under investigation and he did not have an attorney advising him.
But Sullivan rejected that argument, saying Flynn should be held to a higher standard.
“He was a high-ranking government official, advising the president of the United States,” Sullivan said. “I’m not hiding my disgust or my disdain for this criminal offense.”
Sullivan also demanded to know from prosecutor Brandon Van Grack whether Flynn could have been charged with treason.
Van Grack appeared to try to sidestep the question. He apologized to the judge, saying he didn’t want to misspeak about the case, but said he believed the most he could say was that the special counsel did not consider such a charge “based on the evidence that the government had at the time.”
Later, Van Grack told the judge that prosecutors did not believe Flynn committed treason.
Nevertheless, Sullivan warned Flynn that he believed Mueller’s recommendation that Flynn serve little to no prison time was probably too kind.
“I can’t promise you a sentence that involves no jail time,” the judge said.
After a 30-minute recess to confer with his lawyers, Flynn agreed to delay sentencing until a later date, when prosecutors presumably could reveal more about the nature of his cooperation.
Sullivan ended the tense hearing with a status conference set for March.
At day’s end, the judge issued one last shot at Flynn, ensuring that he understood he will be treated like all other defendants. Noting that there had been no restrictions on Flynn’s travel, Sullivan wrote in an order that beginning Jan. 4, the former general will no longer be allowed to travel more than 50 miles outside of Washington without permission. He will also have to surrender his passport.
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