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Judge Postpones Sentencing of Michael Flynn After Harshly Rebuking Him Judge Postpones Sentencing of Michael Flynn After Harshly Rebuking Him
(about 5 hours later)
WASHINGTON — A federal judge on Tuesday postponed the sentencing of Michael T. Flynn, President Trump’s first national security adviser, after warning Mr. Flynn that he could face prison for lying to federal investigators about his conversations with the Russian ambassador during the presidential transition and hiding his role lobbying for Turkey. WASHINGTON — A federal judge transformed a seemingly straightforward sentencing hearing for Michael T. Flynn, President Trump’s first national security adviser, into a dramatic showdown on Tuesday, expressing “disgust” at Mr. Flynn’s efforts to mislead federal investigators and dismissing suggestions he had been treated unfairly.
At Mr. Flynn’s sentencing hearing in Federal District Court in Washington, Judge Emmet G. Sullivan called Mr. Flynn’s crimes “a very serious offense” and said he was not hiding his “disgust” at what Mr. Flynn had done. In an extraordinary two-hour session in Federal District Court in Washington, the judge, Emmet G. Sullivan, left no doubt that he viewed Mr. Flynn’s crimes as serious enough to warrant prison time despite a recommendation from prosecutors that he receive a lenient sentence.
“All along you were an unregistered agent of a foreign country while serving as the national security adviser,” the judge told Mr. Flynn. “Arguably that undermines everything that this flag over here stands for. Arguably you sold your country out.” But Judge Sullivan gave Mr. Flynn the option of postponing his sentencing so he had additional time to prove the value of his cooperation with federal prosecutors. Mr. Flynn promptly took up the offer, delaying a decision on his fate at least until March.
Later in the hearing, the judge corrected himself, noting that Mr. Flynn’s work on behalf of Turkey had ended in mid-November of 2016, before Mr. Flynn became national security adviser. The judge acknowledged he had made a mistake and said he felt “terrible about that.” The hearing underscored the gravity of the inquiry by the special counsel, Robert S. Mueller III, and the enormous consequences for those ensnared in it.
But Judge Sullivan gave Mr. Flynn the option of delaying the sentencing until he had completed his cooperation agreement with federal prosecutors. “I cannot assure that if you proceed today you will not receive a sentence of incarceration,” Judge Sullivan told Mr. Flynn. Mr. Flynn, 59, a retired three-star general whose military career spanned 33 years, pleaded guilty a year ago to lying to F.B.I. agents about his conversations with the Russian ambassador, Sergey I. Kislyak, in the month after Mr. Trump’s election. He also acknowledged that he lied in documents he filed with the Justice Department about his lobbying efforts on behalf of the Turkish government before the election.
After a short recess, Mr. Flynn returned to the courtroom to take the judge up on his offer. “This is a very serious offense,” Judge Sullivan said. “A high-ranking senior official of the government making false statements to the Federal Bureau of Investigation while on the physical premises of the White House.”
Mr. Flynn faces up to six months in prison, but federal prosecutors have recommended a lenient sentence, including the possibility of probation, because Mr. Flynn has provided “substantial help” with multiple criminal inquiries. At one point, Judge Sullivan asked whether Mr. Flynn could have been charged with additional crimes. Later, he even raised and then dropped the prospect of a case for treason.
During the sentencing hearing, Judge Sullivan questioned Mr. Flynn and his lawyer about their earlier suggestion that F.B.I. agents might have tricked Mr. Flynn by failing to inform him before they interviewed him nearly two years ago that lying to them would constitute a federal crime. The judge also walked back another provocative statement he had made, saying he “felt terrible” that he had wrongly accused Mr. Flynn earlier in the proceeding of selling out his country by simultaneously working as a foreign agent for Turkey and Mr. Trump’s national security adviser. Mr. Flynn’s work for Turkey ended before he took up his White House post.
Mr. Flynn told the court that he was not challenging the circumstances of the interview and that he knew lying to the F.B.I. was a crime. In doing so, Mr. Flynn distanced himself from Mr. Trump’s efforts to suggest misconduct by the F.B.I. in the investigation by the special counsel, Robert S. Mueller III. Even though prosecutors had said they would accept a sentence of probation, the judge warned Mr. Flynn that he could not guarantee that outcome. Advisory sentencing guidelines recommend a maximum sentence of six months in prison.
Earlier, Mr. Trump had wished Mr. Flynn “good luck” in a Twitter post. “I can’t make any guarantees, but I’m not hiding my disgust, my disdain for this criminal offense,” the judge said.
Mr. Flynn is the highest-ranking aide to Mr. Trump to face sentencing in the special counsel’s investigation of Russia’s interference in the 2016 presidential election and the Trump campaign. His case has marked an extraordinary fall from grace for a retired three-star general who once headed one of the nation’s most important military intelligence operations, the Defense Intelligence Agency. Before Tuesday’s hearing, Mr. Flynn and his lawyer, Robert K. Kelner, had implied in presentencing memos that the F.B.I. agents who had interviewed Mr. Flynn may have tricked him by failing to warn him that lying to investigators was a crime.
Prosecutors have refused to disclose publicly the details of how Mr. Flynn, 59, helped them during 19 interviews over the past year, redacting paragraph after paragraph of their sentencing memo to the judge. His lawyer, Robert K. Kelner, said in court on Tuesday that Mr. Flynn’s cooperation was “very largely complete” but that Mr. Flynn wanted to make sure he got full credit for further assistance to prosecutors before being sentenced. In raising the possibility of misconduct by the investigators, Mr. Flynn and his supporters further fueled efforts by Mr. Trump and some of his supporters to undercut the credibility of the special counsel’s investigation.
Judge Sullivan made abundantly clear throughout the proceedings that he viewed the crimes admitted to by Mr. Flynn as extraordinarily serious and a betrayal of the trust placed in him as a high-ranking White House official. At one point he even asked prosecutors if Mr. Flynn might have committed treason. (The prosecutor in the case, Brandon L. Van Grack, said no.) But under questioning by Judge Sullivan, Mr. Flynn acknowledged that he knew it was a crime to lie to the F.B.I. and he reiterated his guilt.
The special counsel’s office is investigating whether Mr. Trump obstructed justice, including by asking James B. Comey, the F.B.I. director at the time, to end the investigation of Mr. Flynn in early 2017. It is unclear whether Mr. Flynn knew about the president’s reported attempt to intervene on his behalf. The presentencing memo from Mr. Flynn’s defense team had noted that F.B.I. agents had deliberately decided not to warn Mr. Flynn that lying to them was a criminal offense when they interviewed him in the West Wing on Jan. 24, 2017, four days after Mr. Trump’s inauguration.
On Monday, federal prosecutors in Virginia unsealed an indictment accusing two of Mr. Flynn’s former business associates of violating foreign lobbying rules. Prosecutors said the two men conspired with Turkey in 2016 to pressure the United States to expel a rival of President Recep Tayyip Erdogan. Prosecutors said Tuesday that Mr. Flynn aided them in the case. The agents also told Mr. Flynn that notifying the White House Counsel’s Office would be time-consuming and prompt the Justice Department’s involvement.
In arguing for probation, Mr. Flynn’s lawyers had cited his lengthy military service, his cooperation with prosecutors and his contrition. That kicked off a public controversy about the F.B.I.’s conduct, with Mr. Trump insisting the law-enforcement authorities had wrongly cornered Mr. Flynn. It also inspired speculation that Mr. Flynn, whose lawyer at one point discussed a possible pardon with a lawyer for Mr. Trump, was inviting the president to spare him punishment.
But they also had criticized F.B.I. agents for failing to advise him before the interview on Jan. 24, 2017, that lying to them would constitute a federal crime. They claimed that the agents deliberately did not warn Mr. Flynn so he would not be on his guard — an accusation that appeared intended to draw the attention of Judge Sullivan, who has taken other prosecutors to task for misconduct. Before the hearing, Mr. Trump wished Mr. Flynn “good luck,” saying he had been under “tremendous pressure.”
Defense lawyers also raised the idea that Mr. Flynn’s bearing during questioning was potential evidence that he did not lie to investigators. One of the agents who interviewed Mr. Flynn later told the special counsel that Mr. Flynn had a very sure demeanor and did not reveal any “indicators of deception.” Even after it, Sarah Huckabee Saunders, the White House press secretary, said Mr. Flynn had been wronged. “What we do know,” she said, “is that the F.B.I. broke standard protocol in a way that they came in and ambushed General Flynn and in the way that they questioned him and in the way that they encouraged him not to have White House Counsel’s Office present.”
The move by Mr. Flynn’s legal team to raise questions about the F.B.I.’s conduct might have been a play for a pardon from the president, whose former lawyer had discussed the idea last year with a lawyer for Mr. Flynn. Mr. Trump has repeatedly said that Mr. Flynn was treated poorly. But in Judge Sullivan’s fourth-floor courtroom, Mr. Kelner said he was merely trying to show that Mr. Flynn had been held to a higher standard than two other people who had pleaded guilty to lying to federal investigators for the special counsel: George Papadopoulos, a former Trump campaign aide, and Alex van der Zwaan, a Dutch lawyer who worked with Paul Manafort, Mr. Trump’s former campaign chairman. Both men were warned in advance not to lie to investigators and one brought a lawyer to his F.B.I. interview.
Prosecutors dismissed the claims that Mr. Flynn had been tricked as a poor excuse, saying that as a high-ranking White House official and the former director of an intelligence agency, he was well aware that misleading federal authorities was a felony offense. The judge speedily dismissed that comparison, repeatedly noting that Mr. Flynn was a high-ranking government official who had betrayed the government’s trust by lying “in the White House, in the West Wing.”
“The seriousness of the defendant’s offense cannot be called into question, and the court should reject his attempt to minimize it,” prosecutors wrote last week after Mr. Flynn’s legal team made the assertion. In an account of Mr. Flynn’s F.B.I. interview filed in court late Monday, agents described in detail how he falsely answered their questions. Although Judge Sullivan has a reputation for being hard on government misconduct, he found no fault with the conduct of the F.B.I. or prosecutors. He said Mr. Flynn deceived not only F.B.I. agents, but also senior White House officials, who then repeated his lies to the American public.
His sentencing hearing came amid a flurry of activity in criminal cases that have involved the Trump campaign, the White House and the president himself. “This is a very serious offense,” he said. “This case is in a category by itself.”
Last week, Michael D. Cohen, Mr. Trump’s longtime fixer, was sentenced to three years in prison for crimes including organizing hundreds of thousands of dollars in payments to cover up potential sex scandals that threatened Mr. Trump’s presidential bid. Prosecutors have said Mr. Cohen acted at Mr. Trump’s direction, implicating the president in felony violations of campaign finance laws. At one point, he asked Brandon L. Van Grack, the lead prosecutor, whether Mr. Flynn was guilty of treason. The question clearly surprised a phalanx of lawyers on Mr. Mueller’s team who were present for the proceedings. Mr. Van Grack at first hesitated to answer, then later said the government had no evidence of treason, and the judge dropped the point.
Mr. Flynn, who led Trump supporters in chants of “lock her up” against Hillary Clinton at campaign rallies, was interviewed by F.B.I. agents only four days after Mr. Trump’s inauguration. He pleaded guilty a year ago to misleading them about a series of discussions he had with the Russian ambassador, Sergey I. Kislyak. Some of Judge Sullivan’s sharpest rebukes involved Mr. Flynn’s lies about his lobbying work for the Turkish government. Wrongly asserting that Mr. Flynn continued to work as an unregistered foreign agent during his short tenure as national security adviser, the judge gestured to the American flag at his side and declared: “I mean, arguably, that undermines everything this flag over here stands for. Arguably, you sold your country out.”
Prosecutors have said Mr. Flynn’s deceptions impeded the F.B.I.’s open investigation into possible links between the Trump campaign and Moscow’s covert effort to tip the presidential election in Mr. Trump’s favor. Mr. Trump has said he fired Mr. Flynn because he had also lied to Vice President Mike Pence about his conversations with the Russian ambassador. Later in the hearing, the judge acknowledged his mistake, noting that Mr. Flynn had stopped working for Turkish government two months before he joined the White House. At that point, Mr. Flynn’s sister, who was seated with his wife and son, turned around to reporters and ordered, “Write that down.”
Mr. Flynn has now admitted that after the outgoing Obama administration imposed sanctions against Russia for its interference in the 2016 presidential race, he requested that Russia not escalate tensions between the two countries. Mr. Kislyak later told him that Russia had agreed not to retaliate, an unusual decision that Mr. Trump himself praised. For Mr. Flynn, who once led supporters of Mr. Trump’s campaign in chants of “lock her up” against Hillary Clinton, more uncertainty lies ahead. Although prosecutors said they had gleaned almost all they could from him, Mr. Kelner told the judge that Mr. Flynn wanted to postpone his sentencing to put himself in the best position “to eke out the last modicum of cooperation.”
But in his interview with the F.B.I., Mr. Flynn claimed that he did not remember ever asking Mr. Kislyak that Russia hold back, according to the agents. He told them that he did not even know about the Obama administration’s decision to expel dozens of Russian diplomats and to seize two Russian-owned estates because at that time he was on vacation in the Dominican Republic, without access to television or to his government-issued BlackBerry phone. Under his plea deal, Mr. Flynn met with investigators and prosecutors for the special counsel’s office 19 times. In doing so, he became an early cooperator in an investigation that has spun off criminal cases now in the hands of other federal prosecutors.
Mr. Flynn has also acknowledged that he lied to the F.B.I. about his discussions with Mr. Kislyak and officials from other countries about an impending vote on a United Nations resolution condemning Israeli settlements in the West Bank. The special counsel’s office is investigating whether Mr. Trump obstructed justice, including by asking James B. Comey, the F.B.I. director at the time, to end the investigation into Mr. Flynn in early 2017. It is unclear whether Mr. Flynn knew about the president’s reported attempt to intervene on his behalf, or whether he has offered any insights on that front.
The agents said Mr. Flynn told them that he asked Mr. Kislyak about Russia’s views but did not advocate Russia take any particular position on the resolution. He “stated the conversations were along the lines of where do you stand, and what’s your position,” the agents wrote. Prosecutors acknowledged that Mr. Flynn had helped the government secure an indictment in Northern Virginia against two of his former business associates for violating foreign lobbying rules. Prosecutors said the two men conspired with Turkey in 2016 to pressure the United States to expel a rival of President Recep Tayyip Erdogan.
In fact, Mr. Flynn asked that Russia either delay or oppose the resolution. Although he could have faced additional charges in that case that carried up to 15 years in prison, prosecutors said, Mr. Flynn was being treated only as a witness.
Finally, he has admitted lying about his lobbying work for Turkey in documents he filed with the Justice Department after he was forced out as Mr. Trump’s national security adviser amid controversy over his conversations with the Russian ambassador. How exactly Mr. Flynn’s lies hampered the special counsel’s inquiry into Russia’s meddling in the 2016 election remained, for now, unclear. So did the precise reasons he lied.
He held that post for just 24 days, the shortest tenure ever. As he ended the hearing, Judge Sullivan warned Mr. Flynn that even if he could show further evidence of how much he had helped the special counsel’s office and the Justice Department, the judge might send him to prison.
As Mr. Flynn left the federal courthouse, he faced a divided and raucous crowd in which some people yelled “U.S.A.” while others chanted “Lock him up.”