Just as predicted, ever since retired Lt. Gen. Michael Flynn’s hearing yesterday, in which his sentencing was postponed till mid-March, media commentators have gone out of their ever loving minds. Yes, there were some dramatic moments in court, but nothing to warrant the kind of overreaction we’ve seen. The “journalists” that we can usually count on to react this way have been true to form, and they have become tiresome.
As you know, Gen. Flynn pleaded guilty about a year ago to one count of lying to the FBI, even though the agents who talked to him apparently didn’t even think he’d been deliberately deceptive. In May of last year, it seemed that Flynn was not going to be charged by the DOJ. But after Comey was fired and Mueller took over the “Russia” investigation, Mueller found Flynn useful to the special counsel team and ended up charging him, working out a plea deal with him, and accepting his “cooperation.” This three-star general has cooperated for a year now, and it looks as though he’ll be cooperating for another 90 days while he awaits sentencing.
The last-minute memo that Flynn’s lawyers had submitted, outlining the underhanded tactics used by Mueller’s team, seems to have backfired with the judge. According to Byron York, writing in the Washington Examiner, Sullivan may have regarded it as a last-ditch attempt by Flynn to weasel out of his guilty plea, even as he acknowledged in court that he was guilty. Sullivan was having none of what he may have seen as a play-it-both-ways strategy. Since it now seems unlikely that Flynn deliberately lied in his FBI interview, maybe the judge hoped he’d just go ahead and rescind his guilty plea, taking his chances with an ongoing legal fight. Who could blame him for not wanting a defendant pleading guilty in his courtroom to something he didn't do? If you’re like me, you’d like to see Flynn fight back, too.
On the other hand, Judge Sullivan came down hard on Flynn concerning something he wasn’t even formally charged with: his failure to register as a lobbyist on behalf of the Turkish government to have a Turkish citizen accused of plotting the overthrow of President Erdogan extradited from the U.S. (Two of Flynn’s business associates are facing charges for that; it is this case that apparently benefits from Flynn’s “cooperation.”) Failure to register as an agent for a foreign interest is quite often not prosecuted (think Tony Podesta, whose name comes up again below).
But the judge went way over-the-top in referencing Flynn's lobbying work, and that’s what has every anti-Trump reporter talking about “treason” with a gleam in his or her eye. He questioned in open court whether Flynn had “sold out” the United States. “Arguably, that undermines everything that this flag over here stands for,” he said, gesturing towards the American flag. Sullivan seemed to be thinking that Flynn had worked as an unregistered agent of Turkey while in the White House, but it was before then. And, yes, he even asked the prosecutors if they thought Flynn had committed treason.
The prosecutors, of course, had to say NO. As I said on Tuesday, it seems likely that Sullivan asked them that question in court to get their answer on the record. Wouldn’t that be beneficial to Flynn? Sullivan also asked the prosecutors if they thought Flynn’s phone call with the Russian ambassador, in itself, broke the law. Good one, judge! After a looooong pause, the attorneys answered that it might have violated the Logan Act. The judge laughed and said something like, “Oh, you mean that law that no one’s ever been prosecuted for?”
It should also be said that after a recess, the judge tempered the harsher things he had said.
As York points out, Flynn didn’t even do the things Judge Sullivan lost his cool over. He did not commit treason, he did not work as a foreign agent while in the White House, and he did not “sell out” he United States. If he had done those things, we can be sure Mueller would have charged him with them. But listen to some commentators, and you’d think we should be standing him against a wall and offering him a blindfold and a last cigarette.
Some elements of Tuesday’s hearing remain mystifying, but let’s try to put what Flynn was accused of in perspective. Jonathan Turley, in an opinion piece for FOX News, said, “The failure to file as a lobbyist for Turkey under the Foreign Agents Registration Act [FARA] hardly makes Flynn the modern-day equivalent of Benedict Arnold. It makes him the Republican version of Tony Podesta, who is enjoying his retirement in his home in the upscale Kalomara neighborhood of Washington a few doors down from the former President Obama and his family.”
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