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Michael Flynn’s Dramatic Day in Court

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From The New Yorker, December 18, 2018


n Tuesday morning, Donald Trump’s former national-security adviser, Michael Flynn, arrived at the federal courthouse in Washington, D.C., dressed in a gray suit and a candy-cane tie. Boosters and protesters called out to him and chanted “Clear Flynn now” and “Lock him up!” as he stepped from his car. He and his legal team skipped the security line.

A year ago, Flynn pleaded guilty to lying to F.B.I. agents about his contacts with the Russian ambassador Sergey Kislyak and began coöperating with the special counsel Robert Mueller’s investigation of Russian interference in the 2016 Presidential election. Now it was time for Flynn—who, before his involvement with Trump, had a lengthy career in the Army, rising to the rank of lieutenant general and serving as Barack Obama’s director of the Defense Intelligence Agency—to be sentenced for his crime.

For the moment, Trump and many of his supporters were ignoring Flynn’s coöperation with Mueller. “Good luck today in court to General Michael Flynn,” Trump tweeted this morning. Outside the courtroom, one man remarked that Flynn’s crimes paled in comparison to what occurred in Benghazi—Hillary Clinton’s handling of the attack was a favorite target of Flynn’s during the Presidential campaign—and said the media attention on Flynn was “clickbait for reporters trying to keep their jobs.” In the overflow room, another man was wearing a red “Make America Great Again” T-shirt.

Shortly after eleven, the judge, Emmet G. Sullivan, entered the courtroom. He described himself as being in a puzzling position. After the special counsel’s office filed a sentencing memorandum on December 4th that described Flynn’s “substantial assistance” to Mueller’s team, over the course of nineteen interviews, and recommended no jail time, Flynn’s lawyers muddied the picture by claiming that Flynn wasn’t aware that lying to F.B.I. agents was a crime and noting that one of the agents who interviewed Flynn, Peter Strzok, was himself later investigated for misconduct.

“This sounds like a backpedalling on the acceptance of responsibility,” Sullivan said. Was Flynn assuming guilt or not? Sullivan called Flynn to the podium and had him sworn in. “Any false answers will get you in more trouble,” Sullivan said.

On several occasions, Sullivan, who was not on the case when Flynn pleaded guilty, provided Flynn with an off-ramp to retract his plea. But Flynn stood by the plea, seemingly ignoring everything that his lawyers had claimed on his behalf. Yes, he knew that lying to F.B.I. agents was against the law. Yes, he understood the nature of the charges against him. Yes, he still wanted to plead guilty. Yes, he was prepared to face his punishment.

Trump, his foundation, his campaign, his transition, and his businesses are facing numerous investigations. Even Flynn’s case has at least two prongs: one involving his contacts with Russian officials during the Presidential transition and another related to his lobbying work as a “unregistered foreign agent” of the Turkish government during the Presidential campaign. Many details about Flynn’s coöperation with prosecutors remain secret, redacted in government filings. Those details, however, may well show whether Trump staffed his campaign, like his business, with disorganized, corrupt grifters or with willing participants in a foreign conspiracy against the United States.

As the hearing went on, Sullivan repeatedly asked Flynn whether he felt misled by investigators at any point. (He didn’t.) The judge also, in colorful language, seemed to increasingly telegraph his opinions on the case. Lying to F.B.I. agents was “very serious,” Sullivan said, especially for someone in Flynn’s position, “a high-ranking government official who committed a crime while on the premises of and in the West Wing of the White House.”

He told Flynn, “You were 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 that this flag”—Sullivan turned to the American flag behind him—“over here stands for. Arguably, you sold your country out.” (Later, Sullivan corrected himself, noting that Flynn’s known Turkish work preceded his time as national-security adviser.)

“I’m not hiding my disgust, my disdain for this criminal offense,” Sullivan said. (On Tuesday night, Sullivan restricted Flynn’s travel to within fifty miles of Washington and forced him to surrender his passport.) Then, in perhaps his most controversial statement of the day, Sullivan asked prosecutors whether Flynn’s actions rose “to the level of treasonous activity.” (He went on to say that he did not intend to suggest that Flynn had committed treason.) He said that he was not ruling out the possibility of jail time.

Following a short recess, Flynn’s lawyer, Robert Kelner, stepped to the podium. Perhaps sensing Sullivan’s mood, Kelner reminded Sullivan that Flynn had “held nothing back” from the Mueller investigation. He also brought up the plea deal that the retired general and former C.I.A. director David Petraeus reached with prosecutors, in 2015, when he pleaded guilty to lying to F.B.I. agents about sharing classified information with his mistress, copped to a misdemeanor, and avoided jail time.

And since Flynn might still need to provide coöperation in the case of his former business partner who was indicted by federal prosecutors yesterday, Kelner requested that Sullivan consider postponing Flynn’s sentencing. Sullivan agreed, but not before issuing a mild warning to Kelner. Sullivan didn’t know the Petraeus case well, he said, but he certainly didn’t regard it as any kind of precedent. “Let me just say this. I probably shouldn’t. Having said that, I probably shouldn’t. I don’t agree with the Petraeus sentence,” Sullivan said.

Shortly after that, the courtrooms emptied, and Flynn was led back downstairs and into the cacophonous mob awaiting him outside. A giant, yellow, inflatable rat tied to the bed of a pickup truck hovered over the scene.

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