hen Michael Flynn
walks into court today for his final sentencing hearing, a lifetime of respected national service will hang in the balance on what is said and what occurs. I am not speaking of Flynn but of District Court Judge Emmet Sullivan
. There is no real question about the dismissal of Flynn’s charge of lying to federal investigators. The only question is whether, shortly before a presidential election, Sullivan will use the hearing as a forum for injudicious commentary.
I have practiced law for years before Sullivan and publicly praised him for his demeanor and record as a federal judge. He has served with distinction since 1994 in high profile cases, ranging from Guantanamo Bay detainees to the flawed prosecution of Senator Ted Stevens and to the emails of Hillary Clinton.
Then came the case of Flynn, charged with a single count of lying to federal investigators. Such a charge ordinarily would result in a short sentencing hearing. Flynn fought the charge but, after exhausting his assets and facing a threat by prosecutors to target his son, he agreed to plead to one count. Even an uncooperative witness like lawyer Alex Van Der Zwaan received only 30 days in prison on a similar charge related to special counsel Robert Mueller’s investigation; another — who, like Flynn, fell out of Mueller’s favor — received 14 days in prison.
Yet this is the third attempted sentencing for Flynn. What should have been a perfunctory hearing two years ago was derailed by Sullivan himself. Flynn and the prosecutors thought they would have a simple hearing and a likely sentence without jail time. After all, this was just one count, and Flynn pleaded guilty, then met with Mueller about 20 times as a cooperative witness. Moreover, we now know federal investigators at the time did not believe Flynn intentionally lied to them. Yet when Flynn went to court, he was given a tongue-lashing rather than a sentence.
Using the courtroom flag as a prop, Sullivan falsely accused Flynn of being “an unregistered agent of a foreign country while serving as the national security adviser to the president of the United States. Arguably, that undermines everything this flag over here stands for. Arguably, you sold your country out.” He even suggested Flynn should have been charged with treason, then suggested he might ignore any recommendations and send Flynn to jail: “I cannot assure you that if you proceed today, you will not receive a sentence of incarceration. … I’m not hiding my disgust, my disdain.”
Sullivan later apologized for some of his comments but the bizarre hearing led to a critical delay. During that time, new evidence emerged that cast further doubt on the Flynn investigation, including material showing that FBI agents wanted to close the case as early as December 2016 for lack of evidence. The investigation was kept open at the insistence of now fired FBI special agent Peter Strzok, who showed intense animus for President Trump.
We also learned that, according to recently disclosed notes, former FBI director James Comey admitted to President Obama that Flynn’s conversations with Russians as the incoming national security adviser appeared “legit.” These and other troubling revelations correctly led the Justice Department to seek dismissal of the charge. There is an ongoing investigation and various experts (including myself) have long argued that the Flynn investigation and charge were deeply flawed.
The law on this is clear and overwhelming: Sullivan should have dismissed the charge five months ago. Instead, he again took a highly controversial position. He not only suggested he might charge Flynn himself — with criminal conduct for contesting his guilty plea — but he hired a former judge to argue against any dismissal. Enlisting such a third party to argue for prosecution is highly unusual and deeply troubling. Sullivan seemed to be claiming the right to mete out his own version of justice with a bench-ordered criminal charge and an outsider playing the role of quasi-prosecutor.
Sullivan selected John Gleeson, who has spoken publicly about the Flynn case and is a critic of President Trump. Ironically Gleeson was reversed as a judge for usurping the position of prosecutors in the case of United States versus HSBC Bank, in which the Second Circuit hammered him for exaggerating his role in a way that “would be to turn the presumption of regularity on its head.”
Gleeson filed a brief calling for the court to reject the motion and, bizarrely, order the jailing of someone who prosecutors maintained was not appropriately charged in the first place. His brief was filled with overwrought rhetoric and attacks on the “trumped-up accusation of government misconduct.” The brief drew a sharp rebuke from an appellate panel for relying “on news stories, tweets, and other facts outside the record to contrast the government’s grounds for dismissal here with its rationales for prosecution in other cases.” It held that time was up for Sullivan because “we need not guess if this irregular and searching scrutiny will continue; it already has.”
After that opinion, many of us predicted the full appellate court would reverse, not because of any disagreement on the underlying law but because Sullivan should be given a chance to do the right thing. Sullivan had not finally ruled and, while noting the clear law on this question, the panel should not have taken that final decision away from him. There remains no question as to the outcome of this case: Sullivan either will dismiss this charge or be reversed by the same court that sent it back to him for a final ruling.
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