In ‘disgust,’ judge threatens Flynn with prison, but delays sentencing

WASHINGTON — The sentencing for former national security adviser Michael T. Flynn, scheduled for Tuesday morning, was unexpectedly postponed after a federal judge said Flynn’s conduct left him with “disgust,” and indicated he was considering a prison sentence — even though prosecutors had recommended no jail time for the retired three-star general.

Flynn’s admitted crime of lying to the FBI while occupying a top post in the Trump administration, and his acceptance of a six-figure lobbying contract from a foreign government while serving as a national security adviser to Trump during the campaign “undermines everything this flag stands for,” Judge Emmet Sullivan lectured the defendant in a blunt tirade that startled the packed courtroom.

“Arguably, you sold your country out,” the judge said. “I cannot assure you if we proceed today you will not receive a sentence of incarceration. I cannot hide my disgust, my disdain for this criminal offense.”

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National security adviser General Michael Flynn delivers a statement daily briefing at the White House in Washington U.S., February 1, 2017. REUTERS/Carlos Barria

Retired Lt. Gen. Michael Flynn arrives at the Trump Tower for meetings with US President-elect Donald Trump, in New York on November 17, 2016.

(EDUARDO MUNOZ ALVAREZ/AFP/Getty Images)

Retired United States Army lieutenant general Michael T. Flynn introduces Republican Presidential nominee Donald J. Trump before he delivered a speech at The Union League of Philadelphia on September 7, 2016 in Philadelphia, Pennsylvania. Trump spoke about his plans to build up the military if elected. Recent national polls show the presidential race is tightening with two months until the election.

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Retired Lt. Gen. Michael Flynn, at podium, and Republican presidential candidate Donald Trump attend a campaign event with veterans at the Trump International Hotel on Pennsylvania Ave., NW, where Trump stated he believes President Obama was born in the United States, September 16, 2016.

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WASHINGTON, DC - FEBRUARY 01: White House Press Secretary Sean Spicer (L) yields the briefing room podium to National Security Adviser Michael Flynn February 1, 2017 in Washington, DC. Flynn said the White House is 'officially putting Iran on notice' for a recent missile test and support for Houthi rebels in Yemen. (Photo by Win McNamee/Getty Images)

Army Lt. Gen. Michael Flynn, director of the Defense Intelligence Agency, prepares to testify at a Senate Armed Services Committee hearing in Dirksen Building titled 'Current and Future Worldwide Threats,' featuring testimony by he and James Clapper, Director of National Intelligence.

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White House National Security Advisor Michael Flynn (C) arrives prior to a joint news conference between Canadian Prime Minister Justin Trudeau and U.S. President Donald Trump at the White House in Washington, U.S., February 13, 2017. REUTERS/Carlos Barria
U.S. National Security Advisor Michael Flynn boards Air Force One at West Palm Beach International airport in West Palm Beach, Florida U.S., February 12, 2017. REUTERS/Carlos Barria
National security adviser General Michael Flynn arrives to deliver a statement during the daily briefing at the White House in Washington U.S., February 1, 2017. Picture taken February 1, 2017. REUTERS/Carlos Barria
White House National Security Advisor Michael Flynn (L) arrives at Joint Base Andrews, Maryland, U.S., February 10, 2017. REUTERS/Carlos Barria
WASHINGTON, DC - FEBRUARY 10: (AFP OUT) White House National Security Advisor Michael Flynn (R) walks down the West Wing Colonnade following a bilateral meeting between U.S. President Donald Trump and Japanese Prime Minister Shinzo Abe February 10, 2017 in Washington, DC. Trump and Abe are expected to discuss many issues, including trade and security ties and will hold a joint press confrence later in the day. (Photo by Chip Somodevilla/Getty Images)
ATLANTA, GA - FEBRUARY 02: (L-R) SCAD Dramatic writing professor Chris Auer, Producer Sandra Leviton, Executive producer and writer Michael Flynn, Tv literary agent Jeff Greenberg and Literary manager and producer Kaila York speak on stage during the 'Inside the Writers Room' event on Day One of aTVfest 2017 presented by SCAD on February 2, 2017 in Atlanta, Georgia. (Photo by Vivien Killilea/Getty Images for SCAD)
Lieutenant General Michael Flynn (ret.), National Security Advisor Designate speaks during a conference on the transition of the US Presidency from Barack Obama to Donald Trump at the US Institute Of Peace in Washington DC, January 10, 2017. / AFP / CHRIS KLEPONIS (Photo credit should read CHRIS KLEPONIS/AFP/Getty Images)
Retired Lieutenant General Michael Flynn, U.S. national security advisor, attends a swearing in ceremony of White House senior staff in the East Room of the White House in Washington, D.C., U.S., on Sunday, Jan. 22, 2017. Trump today mocked protesters who gathered for large demonstrations across the U.S. and the world on Saturday to signal discontent with his leadership, but later offered a more conciliatory tone, saying he recognized such marches as a hallmark of our democracy. Photographer: Andrew Harrer/Bloomberg via Getty Images
WASHINGTON, DC - JANUARY 20: Michael Flynn walks out after a morning worship service on Inauguration day at St. John's Episcopal Church in Washington, DC on Friday, Jan. 20, 2017. (Photo by Jabin Botsford/The Washington Post via Getty Images)
WASHINGTON, DC - JANUARY 20: Attorney General nominee Sen. Jeff Sessions (R-AL) (R), talks with National Security Advisor Michael Flynn inside of the inaugural parade reviewing stand in front of the White House on January 20, 2017 in Washington, DC. Donald Trump was sworn in as the nation's 45th president today. (Photo by Mark Wilson/Getty Images)
Retired Lieutenant General Michael Flynn, White House national security adviser-designate, center, stands in an elevator at Trump Tower in New York, U.S., on Thursday, Jan. 12, 2017. Donald Trump is slated to meet with AT&T Inc.'s top executives on Thursday to discuss the company's proposed $85.4 billion bid for Time Warner Inc., according to people familiar with the matter. The president-elect has said he opposes the deal. Photographer: John Taggart/Bloomberg via Getty Images
WASHINGTON, DC - JANUARY 20: Donald Trump's National Security Adviser Gen. Michael T. Flynn (R) arrives on the West Front of the U.S. Capitol on January 20, 2017 in Washington, DC. In today's inauguration ceremony Donald J. Trump becomes the 45th president of the United States. (Photo by Drew Angerer/Getty Images)
Lieutenant General Michael Flynn (ret.) and National Security Advisor Designate and Ambassador Susan Rice, National Security Advisor during a ceremonial passing of authority while participating in a conference on the transition of the US Presidency from Barack Obama to Donald Trump at the US Institute Of Peace in Washington DC, January 10, 2017. / AFP / CHRIS KLEPONIS (Photo credit should read CHRIS KLEPONIS/AFP/Getty Images)
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Flynn had pleaded guilty to one count of making a false statement to the FBI regarding his conversations with Russian ambassador Sergey Kislyak during the transition. Sullivan pressed him on whether he knew he was lying at the time, and understood that it was a crime. Flynn said he did.

Sullivan later walked back one portion of his comments, acknowledging that he had wrongly accused Flynn of working as an unregistered agent of the government of Turkey while serving in the White House. In fact, Flynn had ended his work for Turkey before he joined the White House staff, although he has admitted filing false information about hundreds of thousands of dollars in funds he received from Turkey during the 2016 campaign, claiming his client was a foreign businessman rather than the government in Ankara itself.

Sullivan’s dressing-down of Flynn — who memorably shouted, “Lock her up!” about Hillary Clinton during the 2016 Republican convention — seemed to catch his lawyers, his family members in the courtroom and even prosecutors from special counsel Robert Mueller’s office by surprise.

Mueller’s team had cited Flynn’s extensive cooperation with the investigation in calling for leniency from the judge. Exactly what Flynn disclosed is not public, and he has not been called to testify in open court. Sullivan pressed prosecutors on whether Flynn’s cooperation was completed, and noted it is “rare” to sentence a defendant before that point, inviting Flynn’s team to reconsider their agreement to be sentenced right now.

After a 30-minute break, Flynn’s chief lawyer, Robert Kelner, told Sullivan, “We are prepared to take Your Honor up on his suggestion so [Flynn] can eke out the last measure of his cooperation” in another case unrelated to Mueller’s investigation. That involves the indictment of two businessmen, unsealed by federal prosecutors in Virginia on Monday,  for lobbying for Turkey in 2016 without registering with the Justice Department — a case for which Flynn is potentially a key witness as an unindicted co-conspirator and which could take months, if not longer, to litigate. Sullivan scheduled a status conference on the matter for March, but the actual sentencing will now likely be put off much longer than that.

For all the harsh condemnation of the conduct of the president’s former national security adviser, the proceedings today offered a glimmer of hope for the White House and its allies that the Mueller probe may be nearing its end.

Mueller’s prosecutors, in a sentencing memo two weeks ago, had praised Flynn’s cooperation in several federal probes, including providing “first-hand information” about contacts between the Trump transition team and the Kremlin — an issue that is at the core of the Russia probe.

But when Sullivan pressed one of Mueller’s prosecutors, Brandon Lang Van Grack, about whether Flynn had more assistance to provide the Russia probe, the prosecutor at first hesitated and then replied that the defendant had already given “the vast majority of the cooperation that could be considered.”

Kelner, Flynn’s lawyer, later emphasized the point, saying that Flynn “has held nothing back” from Mueller’s prosecutors, but that his assistance to the special counsel was “very largely completed at this point.” If true, that would suggest that Mueller does not plan to use Flynn, one of his most important cooperating witnesses, to provide testimony in criminal charges against other figures in the Russia probe, which could signify that the criminal investigation is nearing its conclusion.

Mueller could, however, use testimony by Flynn in a final report about his investigation, which he is required to write, although it’s unclear how much of it, if any, will be made public.

Flynn had originally pleaded guilty last December to one count of making a false statement to the FBI — a crime that carries a maximum of five years in federal prison — when he was interviewed by two agents in his White House office on Jan. 24, 2017, about two conversations he held with Kislyak during the transition, after President Barack Obama imposed sanctions on Russia to punish the Kremlin for its interference in the 2016 election. Flynn denied to the agents that he had asked Kislyak not to retaliate. In a followup interview two days later, he denied recalling a second conversation in which Kislyak told him that Russia had decided to honor Flynn’s request.

In a statement of offense filed at the time, Flynn also admitted that he had lied to the agents about separate conversations he had with Kislyak urging Russia to oppose a United Nations Security Council resolution condemning Israeli settlements on the West Bank. He also admitted filing “materially false” statements with the Justice Department about his lobbying work for Turkey, including omitting the role the Turkish government played in directing an op-ed he published in a Capitol Hill newspaper on Election Day calling for the extradition from the United States of an opponent of Turkish President Recep Tayyip Erdoğan.

In the days before Tuesday’s scheduled sentencing, the issues before Sullivan were clouded when Flynn’s lawyers filed a memo saying that, at the suggestion of then Deputy FBI Director Andrew McCabe, Flynn had met with the FBI agents without being represented by a White House lawyer. Flynn’s defenders in the conservative media, led by the Wall Street Journal editorial page, insinuated that the bureau was trying to entrap him into lying. But Flynn and his lawyers put that issue to rest when Sullivan grilled them about it. Asked directly if he continued to “accept responsibility” for his  “false statements,” Flynn answered forthrightly: “I do, Your Honor.” When Flynn asked Kelner if he believes “Mr. Flynn was entrapped by the FBI,” the lawyer replied: “No, Your Honor.”

 

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