Without cameras in the courtroom we are constrained to understand the Flynn sentencing hearing today through the perspectives of others. The Daily Caller has an article [See Here] and a thread on the events [is Here] and a great video recap of the events by Will Chamberlain [is HERE].
That said, there is much speculation and punditry delivered opinion on what took place; and how the hearing ended with Judge Emmet Sullivan delaying the sentencing of Michael Flynn for 90-days. While we await the transcript from the court, here’s my view.
Last night, while contemplating the possible outcomes of the hearing, there was a strong likelihood of exactly what happened today…. but only if Judge Sullivan was aware of the conflicted position of Michael Flynn, and approached the hearing from that perspective.
Flynn took the guilty plea of lying to investigators to avoid Mueller charging him over the Turkish lobbying issues (FARA).
Happily, it appears Judge Sullivan is well aware of this very specific dynamic and the issues therein. Special Counsel Robert Mueller used the unregistered foreign lobbying charges, and -more importantly- the devastating narrative that can be drawn from those FARA violations, as leverage over Flynn. Based on the comments from Judge Sullivan, it is clear he is aware of this dynamic.
That forms the backdrop for Judge Sullivan stating: “I 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.” The judge knows Flynn is pleading guilty to the lying, to avoid larger issues that would come from the unregistered foreign agent issue.
Keep in mind, this is about law and this is about politics. Sullivan appears to be well aware there are times when admitting to violations of law can be the better alternative than allowing the appearance of, and the use of, a much more damaging political narrative.
Think about it this way. If Flynn didn’t accept the plea, team Mueller could then begin deploying a narrative that was not just about a national security adviser lying to federal investigators; but also encompassed an unregistered agent of a foreign power holding a key national security position in the White House. Imagine what team Mueller and the media would do with that narrative. Think about it.
The judge readily understands the scale of both legal leverage and, more consequentially, the political leverage Mueller held over Flynn at the time when Flynn was making decisions on the least-bad outcome (June through November ’17).
So with that in mind, Judge Sullivan begins questioning Flynn and the Special Counsel about the status of current assistance from Flynn toward the recently (not coincidental timing) announced indictments in the Turkish Lobbying case. And Sullivan is asking Mueller’s prosecutor about what other charges they had considered over Flynn.
When Judge Sullivan says: “arguably you sold your country out”, he is not necessarily making a declaratory statement as much as he is referencing the framework of Flynn’s choices. Sullivan projects himself into the position of Flynn: you’re either a liar, or a treasonous foreign agent working in the White House. Which is least bad? That was the narrative option for Flynn.
Then comes a recess.
Following the recess:
[…] “You were an unregistered agent of a foreign country while serving as the National Security Advisor to the president,” said Sullivan. After a 30-minute recess, Sullivan corrected his statement, saying that Flynn’s work for Turkey ended in November 2016.
“I felt terrible about that,” Sullivan said of his statement that Flynn was working for Turkey while in the White House.
At one point in the hearing, Sullivan asked van Grack if the special counsel ever considered charging Flynn with treason. Van Grack hesitated, according to reporters in the courtroom, but said that prosecutors never weighed those kinds of charges. Sullivan also walked back the treason question, saying that he did not intend to imply that Flynn was guilty of the crime. (read more)
I see a good bottom line here; that Judge Emmet Sullivan is well aware of the intricacies of the dynamic. Flynn likely didn’t lie; however, falsely admitting to a lie is a much better option than having team Mueller saying President Trump employed an unregistered foreign agent as his national security adviser. See the dynamic?
Judge Sullivan is not making declaratory statements inasmuch as he is probing and outlining his understanding of Flynn’s position.
As a consequence of this dynamic, Judge Sullivan cannot vacate the plea that Flynn wants or else he positions Flynn to become a target of the Turkish lobbying case that was just unsealed yesterday.
Sullivan’s questions about the current status of Flynn’s cooperation indicate he was seeking to discover if Flynn held immunity in that case; Flynn does not.
If Flynn lawyers had gained full immunity for cooperation in the Turkish lobbying conspiracy case; it’s likely Sullivan may have vacated current Flynn charges. However, with Flynn still legally vulnerable in the Turkish case, any judicial decision favorable to Flynn could expose him to criminal charges in the lobbying case.
So Judge Sullivan delays sentencing 90-days, hoping the Turkish Lobbying conspiracy case is completed -or- at a status where Michael Flynn cannot be enjoined in the criminality therein.
That’s my take.