Note to Michael Flynn: Federal Court Is Not Twitter ~ The Atlantic

A demonstrator holds a sign before the arrival of Michael Flynn for his sentencing hearing. JONATHAN ERNST / REUTERS
Former National-Security Adviser Michael Flynn on Tuesday got an unpleasant lesson on the difference between politically effective arguments and legally astute ones. Backed by an array of well-wishers, including President Donald Trump, and buoyed by widespread conservative arguments that the FBI had violated his rights, Flynn walked into a federal courtroom in Washington, D.C., hoping for the probationary sentence that Special Counsel Robert Mueller had recommended. Instead, he was threatened with jail by a furious U.S. District Judge Emmet Sullivan, who accused him of selling America out and forced him to retreat from his evasions. Flynn’s lawyers hastily agreed to delay the sentencing until March 2019 so that he might strive to cooperate further with the special counsel and perhaps work off the custodial sentence that Sullivan was clearly contemplating.

This may have been a shock to Flynn, but it was predictable to everyone who understands that federal court is neither Twitter nor a cable-news show.

Nobody wants to be charged with a federal crime, but if you must, you want the deal Flynn got. He was the first to cooperate in the special counsel’s investigation in December 2017 and got the first cooperator’s prize: a plea to a single count of lying to the FBI, an offense usually resulting in a sentence of probation. He worked hard to earn the trust and even the respect of the Special Counsel’s Office, submitting to 19 interviews that were “particularly valuable” because he was the first in the door, and likely inducing others to plead guilty through his cooperation. Mueller’s team recommended that he get probation, a permissible sentence under the applicable United States Sentencing Guidelines. The prosecutor recommended the same. Every defendant’s ideal sentence was his to lose.

And he lost it. He now has until March to win it back.
Flynn and his lawyers faced the same problem that has bedeviled Trump and Michael Cohen and Michael Avenatti and Paul Manafort and several other figures in this circus we call life after 2016: A muscular public-relations strategy is often a terrible litigation strategy. Time and again, these players have heard their public statements quoted back at them in court to undermine their legal positions. But Flynn’s error was even more grievous—he incorporated media spin into a sentencing brief.

Flynn’s lawyers argued in his brief that the FBI had wronged him: wronged him by discouraging him from having an attorney present during his interview, by failing to warn him that false statements during the interview would be a crime, and by not telling him that his answers were inconsistent with their evidence so that he could correct himself. The Flynn-as-Deep-State-victim narrative was pleasing to Trump partisans and Mueller foes, but suicidally provocative to a federal judge at sentencing.

Federal judges demand sincere acceptance of responsibility from people pleading guilty, especially when they’re cooperating with the government, and especially when they’re asking for a lenient sentence. Flynn’s sentencing arguments effectively told Sullivan that Flynn saw himself as a victim rather than a contrite wrongdoer. Sullivan seized ominously on that issue from the start of the hearing, interrogating Flynn’s attorneys about how their argument could be consistent with acceptance of responsibility. Eventually, he forced Flynn and his attorneys to concede that they were not arguing that Flynn was entrapped or that his rights were violated, and made Flynn repeat several times that he had pleaded guilty because he was, in fact, guilty. Flynn was surprised, but criminal-defense attorneys weren’t: That’s what happens when you deflect blame at your own sentencing.

Flynn’s tactical error was compounded by unfortunate timing. On Monday, federal prosecutors in Virginia indicted two Flynn associates for violating the Foreign Agents Registration Act, and the indictment clearly demonstrated Flynn’s central role in the crime. Sullivan pounced on this fact. He implied that Flynn, by being allowed to plead to the single false-statement charge, has already escaped more punishment than he should.

Sullivan’s anger was palpable. He openly expressed what he termed “disgust” for Flynn’s actions and asserted, “Arguably, you sold your country out.” He noted that Flynn lied both to the FBI and to members of the Trump administration. In an intemperate moment for which he later apologized, he asked whether Flynn had committed treason. Flynn had not—nobody thought he had—but it’s a bad sign when your judge uses the T word at your false-statements sentencing hearing. If Flynn’s lawyers had not agreed to postpone the sentencing, it’s probable that Sullivan would have given him time in jail.

For a year, online conspiracy theorists and marginal publications have argued that Sullivan would dismiss the case because the government failed to turn over exculpatory material, or because his interview was conducted incorrectly. Since Flynn filed his sentencing brief, more mainstream outlets, including Fox News and The Wall Street Journal’s editorial page, have taken up the cause, proclaiming that the FBI broke the law in its interview. Those arguments are, and have always been, errant nonsense, as any legal professional should know. Could it be that Flynn and his lawyers included the disastrous Flynn-as-victim pitch in their brief because they came to accept the partisan din—because they forgot that federal judges don’t react like people on Twitter? That would be a very 2018 way to go to federal prison.
KEN WHITE is a contributing writer at The Atlantic, an attorney at Brown White & Osborn LLP in Los Angeles, and a former federal prosecutor. He practices First Amendment law, civil litigation, and criminal defense.

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