‘Arguably, you sold your country out’: Judge blasts Flynn at sentencing

Michael Flynn’s sentencing for lying to the FBI was postponed on Tuesday after a federal judge suggested all sides wait until President Donald Trump’s former national security adviser was finished cooperating with special counsel Robert Mueller’s probe.

The surprise outcome came after an unexpectedly contentious hearing, in which U.S. District Court Judge Emmet Sullivan repeatedly admonished Flynn, telling him, “Arguably, you sold your country out.” Flynn had been expected to become the first ex-senior Trump administration official to go to jail as part of Mueller’s wide-ranging investigation into Russian interference in the last presidential election. It now appears that may occur sometime in 2019.

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Flynn pleaded guilty late last year to lying about the subject of conversations he had with high-ranking Russian officials after President Donald Trump won the election, but before he took office.

“All along you were an unregistered agent of a foreign country while serving as the national security adviser to the president of the United States,” Sullivan said at Tuesday’s hearing. “Arguably, that undermines everything that flag over here stands for.”

After about an hour of back and forth with Flynn and his lawyers, as well as Mueller’s team, Sullivan called an abrupt recess to give Flynn and his lawyers more time to reconsider whether they wanted to proceed with the sentencing, indicating he was not always comfortable sentencing those who are still cooperating with authorities.

Sullivan, an appointee of President Bill Clinton, also noted he was not obliged to follow Mueller’s recommendation that Flynn get little or no prison time for pleading guilty.

“This is a very serious offense,” said Sullivan, who noted Flynn’s crime involved a high-ranking official of the government making false statements to the FBI “while on the physical premise of the White House.”

After the recess, Flynn attorney Robert Kelner said they would accept Sullivan’s offer to postpone sentencing so they can “eek” out every drop of cooperation benefit. “We do not take it as a wink-wink, nod-nod,” Kelner said.

“I’m not promising anything,” Sullivan replied.

Kelner noted that Flynn had purposefully remained silent about discussing the Mueller investigation and attempted to draw a contrast with other unnamed people pulled into the probe who have spoken with reporters and lashed out at the Russia probe.

“General Flynn has held noting back, nothing,” Kelner said. “In his extensive cooperation with the special counsel’s office he’s answered every question he’s been asked.”

The Flynn lawyer thanked Mueller’s team for highlighting his client’s cooperation in its sentencing memos and nudged the judge to take into account how it sent a “signal to every other potential cooperator and witness in this investigation.”

“That was consequential,” Kelner said.

Flynn pleaded guilty in December 2017 for lying to the FBI during a White House interview just days after the Trump inauguration. His crime: not being completely forthcoming regarding conversations he had with then-Russian Ambassador Sergey Kislyak about the Obama administration’s sanctions over Moscow’s meddling in the 2016 election.

On Monday night, Mueller’s team released a redacted FBI readout of its interview with Flynn where he lied, showing that the agents offered reminders to the national security adviser about the subjects he may have discussed with Kislyak, such as sanctions. Releasing the notes was the latest attempt to show the FBI agents acted properly during their sit-down with Flynn.

Sullivan opened Tuesday’s hearing offering Flynn a chance to formally back out of his guilty plea in light of concerns his attorneys had raised in their pre-sentencing memo about whether their client was aware that his January 2017 interview with FBI agents, which took place without a lawyer, could lead to his prosecution for lying.

The judge said he “cannot recall any incident in which the court has accepted a plea of guilty from someone who maintained he was not guilty and I don’t intend to start today.”

Flynn’s lawyers replied that they raised the point only in a bid to distinguish their client’s legal predicament from two other people already sentenced in the Russia probe who did have lawyers present for their FBI interviews: former Trump campaign adviser George Papadopoulos and the Dutch attorney Alex Van Der Zwaan.

Papadopoulos was released earlier this month from a federal prison camp after a 14-day sentence, while Van Der Zwaan spent 30 days in prison before being deported.

For his part, Flynn initially said he didn’t want to take Sullivan up on his offer to postpone his sentencing hearing. “I appreciate that, but no your honor,” the former Trump official said.

After striking a plea deal with Mueller’s team, Flynn sat for 19 interviews with Mueller and other government prosecutors. While Mueller’s prosecutors redacted most details about Flynn’s assistance, they noted he provided “firsthand information” on interactions between Trump’s transition team and the Russian government.

During Tuesday’s hearing, Mueller prosecutor Brandon van Grack said “it remains a possibility that Gen. Flynn is continuing to cooperate at this point.”

That prompted Sullivan to take note that he typically doesn’t issue sentences for cooperating witnesses until they’ve finished helping the government. With that, he warned Flynn that he’d be sentenced Tuesday without all of his potential cooperation taken into account.

As he digested the open-ended nature of Flynn’s cooperation, the judge asked Mueller’s prosecutors if Flynn could have been indicted for treason.

“That was not something we were considering at the time, charging the defendant,” van Grack replied.

Pressed again on whether Mueller’s team could have “hypothetically” indicted Flynn on treason charges, van Grack urged caution: “Your honor I want to be careful what I represent, and not having that information in front of me and because it’s such a serious question, I’m hesitant to answer it.”

After the brief recess, Sullivan cautioned observers: “Don’t read too much into the questions I asked. I’m not suggesting he committed treason.”

Flynn’s cooperation did play a role in at least one new round of federal prosecutions, van Grack said.

On Monday, a federal court in Alexandria, Virginia unsealed a grand jury indictment against two of his former business partners who are charged with conspiracy and acting as unregistered foreign government agents for their efforts to get a Turkish cleric extradited from the United States.

Flynn is mentioned nearly 40 times in the indictment unsealed Monday, and van Grack said Flynn could have also been charged in that case. The ex-Trump aide is referred to in the charges as “Person A.” Justice Department policies generally bar naming uncharged individuals by name in an indictment.

Flynn’s attorneys pleaded for no jail time for their client by noting his 33 years of military service, including combat duty for five years. He also spent two years atop the Defense Intelligence Agency during the Obama administration, though that job ended in 2014 after he clashed with the CIA and senior Pentagon officials and shocked some of his colleagues with his increasingly strident views about Muslims.

A registered Democrat, Flynn signed onto Trump’s campaign as an adviser in February 2016 and later saw his stock soar as a potential running mate due to his national security credentials.

Although Trump instead picked then-Indiana Gov. Mike Pence, the Republican’s campaign continued to lean on Flynn and gave him a prime speaking slot during the RNC, where he led a memorable “lock her up chant” about Hillary Clinton.

Flynn’s rise under Trump didn’t come without red flags. President Barack Obama personally warned Trump two days after the 2016 election against hiring Flynn because of his erratic behavior. And Sally Yates, the acting attorney general who served briefly in that role after Trump’s inauguration, also raised concerns to the Trump White House about Flynn’s contacts with the Russian ambassador.

Flynn originally insisted to his administration colleagues that the calls between him and Kislyak were a simple exchange of pleasantries — a line that senior officials used publicly. Ultimately, Trump’s White House fired Flynn in February 2017, days into the administration, for misleading Vice President Mike Pence about his conversations with the Russian officials.

In his guilty plea, Flynn admitted that his calls with Kislyak included a discussion of the recently imposed sanctions.

Some of Flynn’s allies, including family members, Republican lawmakers and Trump himself, have claimed that the former Trump official was essentially set up by the FBI, arguing the agents urged Flynn to answer questions without a lawyer and intentionally failed to warn him that lying to the FBI was a crime.

But Mueller’s team rebutted those claims by noting the FBI officials followed proper interview protocol, releasing the details notes from bureau agents about the White House sit-down.

Trump fanned the flames of the theories about FBI misconduct, suggesting recently that the FBI never accused Flynn of lying in its probe.

“They gave General Flynn a great deal because they were embarrassed by the way he was treated — the FBI said he didn’t lie and they overrode the FBI. They want to scare everybody into making up stories that are not true by catching them in the smallest of misstatements. Sad!……” the president wrote last Thursday.

Trump’s characterization, however, does not square with the fact both Mueller and Flynn agreed in court that he did lie to the bureau.

Trump’s private comments about the Flynn investigation have also become part of a Mueller probe into whether the president obstructed attempts to investigate Russian interference. According to James Comey, the president pleaded with his then FBI director in February 2017 to go easy on Flynn, an interaction Mueller is now probing.

As he wrapped up the hearing, Sullivan made a quick digression to comment about another high-profile case involving a retired military official: Gen. David Patraeus.

The former CIA director got two years of probation and a $100,000 fine in 2015 after pleading guilty to sharing classified information with a girlfriend and biographer.

“Let me just say this, I probably shouldn’t, I don’t agree with Gen. Patraeus’s sentence,” Sullivan said. “Maybe there were extenuating circumstances. I don’t know. it’s none of my business.”

The judge then quickly added, “That has no impact and I would not take that into consideration on whatever sentence I impose here.”

After running through some housekeeping issues related to the Flynn case, including setting the March 13 date for the next status conference, Sullivan adjourned the hearing with a “happy holidays.”

Josh Gerstein contributed to this report.