Nothing aggravates a federal district judge more than being treated like a rubber stamp. That, more than anything else, explains why Judge Emmet Sullivan has ordered a hearing in Michael Flynn’s case next Tuesday (July 10), and has made clear to the special counsel and the defense that Flynn must personally attend.
It is, I suspect, much ado about nothing. But there is a fair amount of intrigue and outrage attendant to Special Counsel Robert Mueller’s prosecution of General Flynn, President Trump’s original national-security adviser. He is awaiting (and awaiting, and awaiting) sentencing after pleading guilty late last year to one count of making false statements to FBI agents. Judge Sullivan, of the District of Columbia, is a notorious scourge against prosecutorial hardball. Consequently, whenever something unexplained happens in the case, Flynn’s admirers stir, hoping the tea leaves mean his guilty plea is about to be vacated and Mueller is about to be disbarred.
They should disenthrall themselves.
Pre-Sentence Reports and Cooperation
Flynn’s sentencing has been postponed multiple times. The last time, in early May, it was adjourned until June 29. In reality, what is being adjourned is better understood as a “status conference” than a sentencing hearing.
Before a defendant is sentenced, federal practice calls for the preparation of a pre-sentencing report (PSR). This is done by the Probation Department to assist the court because the imposition of sentence is as much about the offender as it is about the offense. It is a deep dive into the defendant’s background, prior criminal history, and personal traits that may mitigate or exacerbate the punishment.
Flynn’s offense, under Section 1001 of the penal code, calls for a sentence of zero to five years’ imprisonment. His decades of valor in the service of our country will weigh heavily in favor of no jail time, especially when coupled with the oddities of his prosecution (more on those shortly). Still, a PSR, which will take weeks to complete, has apparently not been started yet. In reality, then, the adjournment dates are scheduled to inquire about whether it is time to get on with the PSR and the setting of a concrete sentencing date.
Flynn’s plea agreement calls for him to cooperate with the special counsel’s investigation. (See pages five and six.) It is not unusual to hold off preparation of a PSR, and to postpone a sentence indefinitely, when a defendant who has pled guilty is cooperating with the government. The most important component of any cooperation involves the defendant’s assistance in the investigation of other people, including potential testimony, and the value of that cannot be assessed until it is complete.
Consequently, even if a defendant has pled guilty because he wants to put the matter behind him, the prosecutor is in no hurry to proceed to sentencing while the investigation is ongoing — to schedule sentencing in Flynn’s case would suggest that no additional charges or testimony arising out of his cooperation were anticipated. And of course, because he wants the prosecutor to praise his client’s cooperation at the eventual sentencing hearing, the defense lawyer has a strong incentive not to object to interminable delay even if his client is chafing to get the sentencing over with.
Understandably, there is great suspicion about the prosecution among Trump partisans.
The fly in the ointment, as it were, is the judge. It is the court’s job to keep the case on track and make sure that the defendant’s due-process rights are being protected. Judges can get irritable when the prosecutor presumptuously assumes that the court will uncritically sign off on any delay the prosecutor seeks.
As we have observed on occasion, the degree of secrecy in Mueller’s investigation is absurd. Furthermore, the special counsel’s office is not inspiring confidence with the gamesmanship by which it is trying to delay the proceedings in the Russian “troll farm” case. Prosecutors obviously filed an indictment for public-relations purposes, never anticipating that they would have to try the case; they were caught flat-footed when one Russian corporate defendant retained counsel, showed up in court, and demanded discovery of the evidence.
Now, in Flynn’s case, it appears that the special counsel waited until the last minute to seek another sentencing delay, assuming Judge Sullivan would simply grant it with no questions asked — no elaboration about the purported need for delay, and no inquiry about whether the defense truly consents to another adjournment.
That does not mean anything important is actually going to happen next week when Flynn is slated to appear. While Sullivan may be irked, this is a routine postponement. I imagine the general and his family wish it were not necessary, but Mueller’s investigation is not completed; it is in Flynn’s interest to remain cooperative and consent to reasonable delays. In the scheme of things, the delay of eight months (so far) is not unreasonable, even in investigations far less significant than Mueller’s.
Peculiarities of Flynn’s Investigation and Prosecution
Understandably, there is great suspicion about the prosecution among Trump partisans. As we have chronicled, it was perfectly appropriate for Flynn, as the incoming national-security adviser, to consult with the Russian ambassador and other foreign counterparts. He should never have been subjected to a criminal probe or interrogated by the FBI as a criminal suspect. It was outrageous for the Justice Department to investigate him for a possible violation of the moribund, unconstitutional Logan Act (especially after distorting the law in order to avoid prosecuting Hillary Clinton for an actual violation of the Espionage Act). It was equally outrageous to grill him about conversations of which the FBI already had recordings — what point could there have been but to try to trip him up? Nevertheless, the agents who conducted the interview — including the now-infamous Peter Strzok — did not believe at the time that Flynn was lying to them; the FBI’s then-director, James Comey, told Congress as much. Flynn was only charged ten months later, after Mueller’s team of highly aggressive prosecutors took over the case.
As frequently happens in the Mueller investigation, this speculation has calcified into fact in the minds of the people doing the speculating.
There are other peculiarities. Judge Rudolph Contreras, who presided over Flynn’s guilty plea, was quietly recused from the case a week later. No explanation has been given for why. In addition to his district-court duties, Judge Contreras serves on the Foreign Intelligence Surveillance Court. It is not known whether he approved any of the FISA warrants in the investigation; it is known, through the lovers’ texts between Strzok and FBI lawyer Lisa Page, that Judge “Rudy” is a friend of theirs.
Meanwhile, when he replaced Contreras as the judge on Flynn’s case, Sullivan issued a discovery order compelling prosecutors to disclose to Flynn any exculpatory evidence in their files. More than likely, Sullivan did this for reasons unrelated to Flynn’s case: He was the judge in the ignominious prosecution of the late Senator Ted Stevens (R., Alaska); having been burned by prosecutorial misconduct involving the withholding of exculpatory evidence, he now makes a point of emphasizing the government’s duty to produce it in every one of his cases. Nevertheless, the issuance of such an order post-plea, even though Flynn had waived the right to such discovery in his plea agreement, fueled speculation that Mueller had possibly failed to disclose to Flynn that the interviewing agents did not believe he lied.
As frequently happens in the Mueller investigation, this speculation has calcified into fact in the minds of the people doing the speculating. But the truth is that we don’t know that Mueller withheld information from Flynn’s lawyers. Indeed, we can’t even say such information was all that crucial. To be considered materially exculpatory evidence, information must be actually exculpatory and admissible. If I lie to you, it is still a lie even if you believe me; and in a trial, you would not be permitted to testify as an expert on the operation of my mind (to opine that I was either lying or telling the truth) — that would be up to the jury to decide, based on what I said and what the government could prove I knew at the time I said it.
Pardon, Not Plea Withdrawal
This brings us to the issue of vacating Flynn’s guilty plea, which his fans ardently hope against hope will happen.
Non-lawyers understandably focus on the equities that are in Flynn’s favor. They skip over the inconvenient fact that he got up in court, pled guilty as charged, and provided the court with an explanation of why he was guilty. Legally, it is almost impossible to un-ring that bell. A plea proceeding is an exacting affair, in which the accused is thoroughly advised of all the rights he is waiving, and the judge takes pains to ensure that he is pleading guilty because he has committed illegal conduct with criminal intent. It is exceedingly rare for a plea to be vacated after it has been accepted by the court.
More importantly (and this is the point people tend to miss), the accused usually pleads guilty because it is a good deal. In Flynn’s case, he could have been charged with multiple false-statements counts; in addition, because of Mueller’s harsh treatment of people who act as agents of foreign governments without registering with the Justice Department (an offense heretofore very infrequently prosecuted), there was the possibility of charges involving his company’s work for the government of Turkey, in which Flynn’s son may have been implicated.
If Flynn gets a reprieve, it will be because the president exercised clemency.
Understand: I am not saying Flynn is necessarily guilty of additional crimes. I am saying that even if by some legal miracle Flynn were permitted to withdraw his plea, Mueller is not going away. If the plea deal were broken, all bets would be off. The special counsel could then indict him on any and all charges that were dropped in exchange for the guilty plea. Flynn, and perhaps his son, would face the extensive time, crushing expense, and high anxiety of defending against the case.
General Flynn pled guilty precisely to avoid dealing with all of that, to put this dark chapter behind him and his beleaguered family. Whatever suspicions there may be about the validity of the false-statement plea, they do not make the rest of Flynn’s potential problems disappear.
That is why the plea will stand . . . unless President Trump pardons him.
Personally, I believe Flynn should be pardoned, forthwith. His investigation was politicized. His prosecution should never have happened. There does not appear to be any viable “collusion” or obstruction case against President Trump, much less one in which Flynn would be a critical witness. If such a case were unexpectedly to develop, Flynn has been cooperating with Mueller, so there are presumably FBI reports (perhaps even grand jury testimony) outlining Flynn’s version of events. There is no reason to believe a pardon would induce Flynn to change his tune and lie on the president’s behalf; in the highly unlikely event that he did, Mueller could prosecute him for perjury.
Alas, a Flynn pardon will not happen at this point because the politics militate against it. Eventually, I believe, Flynn will be pardoned because he deserves to be. I could be wrong, but about this much I am confident: If Flynn gets a reprieve, it will be because the president exercised clemency, not because Judge Sullivan vacated his plea.