Flynn’s Risk of Prison Resurfaces

(Bloomberg) -- Michael Flynn entered a courtroom Tuesday with the hope of a lenient sentence with no prison time and a thank-you for his cooperation.

Instead, Flynn, President Donald Trump’s former national security adviser, left with the threat of a prison term, a delay in sentencing and a stinging rebuke from a federal judge who told him, “Arguably, you sold your country out.”

The startling turn of events in a Washington federal court came after the sentencing judge, Emmet Sullivan, pressed prosecutors for more details about Flynn’s illegal deeds and expressed “disgust” and “disdain” for the seriousness of Flynn’s offenses.

Flynn’s Risk of Prison Resurfaces

Flynn pleaded guilty to lying during an early 2017 FBI interview about his conversations with the Russian ambassador. Special Prosecutor Robert Mueller said in court papers that Flynn had provided such valuable cooperation -- across 19 interviews related to multiple probes -- that he deserves a lenient sentence without time behind bars. Flynn’s lawyers agreed. They added that he would continue to cooperate even after his sentencing.

But the judge delved into allegations revealed this week that Flynn had taken money for a secret lobbying effort for Turkey while he was the top national security adviser for Trump’s campaign. Federal prosecutors told the judge Tuesday that participation in that alleged conspiracy could have led to as much as a decade in prison. He called Flynn’s lies to investigators “very serious,” especially for a career military officer and top national security official.

“I’m not hiding my disgust, my disdain for this criminal offense,” Sullivan said. He suggested that Flynn reconsider whether it was in his interest to be sentenced Tuesday, or whether he would benefit from first completing his cooperation with prosecutors.

Sullivan said that federal judges have a difficult time handing down sentences to cooperators when they don’t know the full extent of their assistance. “I cannot assure that if you proceed today you will not receive a sentence of incarceration,” Sullivan told Flynn.

Following an impromptu break in the hearing, Flynn and his lawyers agreed to delay sentencing. A status report in the matter is due March 13, delaying sentencing by at least three months.

Sentencing Memos

The unexpected drama underscores the complications of Mueller’s investigation, in which routine law enforcement intersects with charged politics. Typically, an admitted felon who cooperates with authorities would happily accept prosecutors’ recommendation of a light sentence. In this case, Flynn’s legal team pushed back, which two former U.S. prosecutors said may have hurt their case.

Mueller’s team had filed a sentencing memorandum saluting Flynn for accepting responsibility and actively cooperating. Flynn, in his reply, accepted responsibility for his conduct. But his attorneys also argued that two FBI officials involved in the case, Peter Strzok and Andrew McCabe, neglected to warn him that it was a crime to lie to federal investigators. The two men have been vilified by right-wing media for their anti-Trump views.

Mueller’s team said Flynn didn’t need a warning to know not to lie to agents. By Tuesday, Flynn said that he was aware that lying to the FBI was a crime.

The attempts to sully the FBI officials may have backfired, said Ryan Fayhee, a former federal prosecutor in the national security division of the Justice Department. “With a less sophisticated defendant, this might have worked, but not for the former head” of the Pentagon’s Defense Intelligence Agency who was also the U.S. national security adviser, said Fayhee, who’s now at Hughes Hubbard & Reed LLP.

Mueller’s Recommendation

Mueller’s willingness to proceed with sentencing could be a signal to potential witnesses that prosecutors “reward those who cooperate fully and completely, and they are capable of recommending no jail time,” Fayhee said.

Sullivan was appointed to Washington D.C.’s Superior Court by President Ronald Reagan, to the D.C. Court of Appeals by President George H.W. Bush, and to the the U.S. District Court by President Bill Clinton.

In the past decade, he has shown his willingness to criticize federal prosecutors, either for overreaching or aiming too low. In 2008, he presided over the trial of U.S. Senator Ted Stevens of Alaska, which resulted in a conviction. The following year, as examples of prosecutorial misconduct emerged, Sullivan set aside Stevens’s conviction and ordered an inquiry into the Justice Department lawyers who brought the case.

In 2010, he questioned prosecutors’ decision to enter a $298 million deferred prosecution agreement with Barclays PLC for violating U.S. sanctions against Cuba, Iran and Libya without charging any individual bankers.

Judge’s Questions

At the end of the Flynn hearing on Tuesday, Sullivan said there were several questions he still wanted answered before imposing a penalty and said he might consider sharing those with the parties ahead of a new sentencing date.
Among them was how Flynn’s lies harmed the government’s investigations. At the time he was questioned -- just a few days after Trump’s inauguration -- the U.S. investigation into Russian contacts with the Trump campaign was focused on Flynn’s contacts with Russian ambassador Sergey Kislyak.

The FBI interview in which Flynn lied to agents in the West Wing of the White House occurred almost four months before Mueller was appointed special counsel.

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