On Tuesday morning the former national security adviser and retired four-star general, Michael Flynn, woke up believing that his nightmare was almost over. After having pleaded guilty to lying to the FBI and cooperating for many months with the special counsel in the Russia investigation, he had every reason to believe that he would be allowed to walk free. The government had requested that he serve no time for his crime, praising his early decision to cooperate and noting his long service as a high-ranking military officer.
It's also possible that Flynn thought the judge would do something even more drastic by vacating the guilty plea and taking the government to task for ever charging him in the first place. In an unexpected last-minute move, his lawyers had implied in their sentencing memorandum that FBI agents had failed to properly conduct their interview, suggesting that the whole case was built on tainted evidence. Judge Emmet Sullivan, who was hearing the case, is known to be hostile to government abuses of power. His response was to ask for the underlying documents in the case in order to assess whether that had happened in the case.
Trump supporters immediately jumped to the conclusion that their crusade against the FBI and the Department of Justice had found a sympathetic ear in the judiciary, and that meant that the case against President Trump would come tumbling down at last. Flynn is known to be an avid consumer of right-wing media so he undoubtedly felt buoyed by the possibility. If Flynn walked out under those circumstances it would mean he could have his cake and eat it too -- be a government cooperator while maintaining his conservative street cred with an eye toward future money making possibilities.
Kimberley Strassel of the Wall Street Journal held up Sullivan as “a judge who is wise to the tricks of prosecutors and investigators … His reputation is for being no-nonsense, a straight shooter, an advocate of government transparency.” Fox News' Judge Jeanine Pirro spoke for all the hopes and dreams of the Trumpian right on her broadcast over the weekend:
Pirro was right about one thing. Judge Sullivan is “a man who does not tolerate injustice or abuse of power." The problem is that she and all the others refuse to see who it is that's doing that. Michael Flynn is the powerful man who abused his position, not the federal authorities who caught him at it.
It's true that prosecutors and law enforcement can abuse their power. And far too often they are aided and abetted by the judiciary, many members of whom are former prosecutors themselves. Sullivan isn't one of them. He often pushes back on the government when it fails to follow proper procedure and is unusually willing to challenge the Department of Justice when it goes easy on wealthy white-collar criminals. And as it happens, Flynn is the epitome of the kind of defendant Sullivan thinks the government routinely lets off too easy. It was obvious yesterday that after looking at all the documents and having access to the redacted and classified material the public cannot see, he thought the Mueller team's sentencing request was far too lenient.
Sullivan was offended by the abuse of government power -- by Michael Flynn. He seems to have concluded, perhaps by the somewhat sappy sentencing memorandums from both sides, that Mueller was being taken in by a man who wore the uniform. Sullivan even mentioned another powerful government figure, Gen. David Petraeus, as a similar defendant he thought was dealt with too kindly.
When the judge took the bench yesterday it was immediately obvious that Flynn's lawyers' gambit, in implying that he'd been duped by the feds, had backfired. Sullivan asked Flynn if he wished to withdraw his guilty plea and he said no. He demanded to know if Flynn sincerely believed he had committed the crime and Flynn said yes. He offered to delay the sentencing so that Flynn could think it over. As he spoke, Sullivan reportedly became more and more animated by what he saw as an act of betrayal that was going unpunished. He was completely unsympathetic to the notion that Flynn had been treated unfairly and was instead outraged by his behavior and was clearly considering a prison sentence if Flynn didn't take the offer to delay..
In the end Flynn wisely took him up on it. He will turn over his passport and face strict travel restrictions, and will be back in court for sentencing in March, apparently after working a little bit more with prosecutors to earn his "get out of jail free" card. It is unclear what else Flynn has to offer but one can't help but wonder if there is something else hanging out there. The reason for asking that questions is that this man who has spoken with prosecutors 19 times and spilled many secrets still maintains the full support of the president of the United States.
On Tuesday morning, Trump tweeted:
That's quite a contrast to Trump's comments about another of his former associates who is cooperating with prosecutors:
There's a lot of head-scratching about why Flynn continues to be such a favorite with the president and his supporters. He's Mueller's favorite witness! White House press secretary Sarah Sanders gave a little clue yesterday. She held a short press briefing after the hearing and continued to attack the FBI for allegedly "ambushing" Flynn even after he had contritely admitted to the judge just hours earlier that no such thing had happened. But Sanders also said outright that the president favors Flynn over Cohen because Flynn's admitted crime and other conduct "are not related to Trump," which clears up why he remains on the president's good side.
It's still unclear why Flynn lied about his conversations with the Russian ambassador. The interview notes show that the FBI agents let him know they were aware of those conversations and Flynn made false statements anyway. Perhaps the reason is hidden under all those blacked-out lines in the sentencing documents but at this point it remains a mystery. This does raise the question of why the president can possibly be sure that Flynn hasn't implicated him. It makes you wonder whether the president's little mole in the Department of Justice, Acting Attorney General Matthew Whitaker, hasn't been whispering in his ear.
If that's so, Trump and his fans should not rest easy. Michael Flynn walked out of the courtroom yesterday with an order from the judge that if he expects to get that lenient sentence he's going to have to earn it. If there's something he's been holding back, he knows what he has to do. Using right-wing fever swamp narratives in a court of law has proved to be a very bad strategy.