Judge Sullivan Was Prepared For Potential Flynn Perjury and Fraud On The Court

Okay, that was quite a morning at the E. Barrett Prettyman Courthouse in DC in regard to the Flynn plea and sentencing. In the windup this morning, well before the proceeding began, I cautioned that Flynn and his attorney Rob Kelner would have to back off the right wing Fox News Trumpian nonsense they stupidly included in their sentencing memo. See this report from Marcy on the sentencing memo, and this one as to how the FBI 302’s the Flynn team stupidly demanded be made public ate them alive. And, they really did.

There is already simply a ton of discussion on the Flynn proceeding today, I will leave that to others. But there was one little nugget I say from, I think, Glenn Kirshner, as almost a throwaway comment, on MSNBC that Judge Sullivan insisted Mike Flynn be sworn in before proceeding today. I was not really ready to write about this until confirming it from others in the courtroom this morning. I have now received that corroboration from multiple sources. In fact, Judge Sullivan directly said he was doing so because “he was doing basically an extension of the plea colloquy”. Wow!!

This is fairly notable. Defendants can get sworn in for their plea allocution, but not their sentencing. Judge Emmet Sullivan was laying in the weeds for Flynn from moment one. To be specific, here is what I said in a tweet well before the sentencing began regarding Flynn and Kelner having included the right wing nonsense about Flynn being innocent and tricked by the FBI in their sentencing memo:

“Keep in mind that this argument, if pursued to success, then makes his plea allocution effectively a fraud on the court.”

Well, apparently Judge Sullivan was on to the problem that such a direct repudiation by Flynn of his underlying guilt, and the previously sworn voluntariness of his plea, would pose if he was stupid enough to continue down that path. Sullivan was ready, because continuing down that path would have directly undermined everything Flynn swore to in his plea allocution on December 1, 2017.

What Judge Sullivan effectively did was set the first real “perjury trap” to date in the greater Mueller investigation (despite the idiocy purveyed relentlessly on Fox News and by Rudy Giuliani). And it was a federal court and judge that did it, not Mueller or his deputies. Emmet Sullivan was loaded for bear today on multiple fronts, but this is one the media does not seem to have caught on to yet.

Flynn and his attorneys were ready for it after the searing followup sentencing memo filed by the government, but clearly were not ready for just how seething Judge Sullivan really was. Frankly, I think the canard, as suggested by Sullivan himself, that “further cooperation” by Flynn really will change the dynamics for sentencing at this point is absurd. That said, assuming they can keep their client from doing further stupid things in the interim, giving Emmet Sullivan 90 days to calm down is not a bad idea for the defense I guess. What a mess. I remain convinced, however, that Flynn could have walked out of court sentenced to probation today if he had not included that right wing Fox News nonsense in his sentencing memo. Oh well!

56 replies
  1. Wajim says:

    Then why did they do it? A Hail Mary to get Sullivan to toss the case? Flynns lawyer seems to smart for that. Ideas?

      • David Lewis says:

        To be a Trumpian one must be a true believer in the Adorno sense.


        These guys are willing prisoners of their own rhetoric. This is starting to get fun.

      • Distant Replay says:

        Believing their own bullshit does not automatically proceed to believing that including it in a sentencing memo on behalf of your guilty af client is good legal practice. Even if the client demands it, this should have been fought off.

    • Bt says:

      Someone pointed out that all of these guys have cooperation agreements with the other attorneys. Perhaps that was all at the request of “someone else’s” legal team?

    • Drew says:

      As Marcy pointed out on Twitter, this thread by Julian Sanchez has the ring of truth:


      Basically, Flynn’s funding for his huge legal bills depends on contributions from the Trumpist right wing, and he can’t afford to represent himself as not-a-martyr for the cause. He’s definitely in a bind here, he needs to keep his head down for 3 months–though it might be that doing a little prison time is the price he’ll decide to pay to get his bills paid.

      • bmaz says:

        Disagree. He didn’t need much further “defense funding” once sentenced. And if called to testify by the government, he would be under their umbrella. He and Kelner spooked and realized Sullivan was looking for an out. That’s pretty much most of it.

  2. Peterr says:

    In that same vein, Flynn’s lawyer’s comment about how Petraeus did not have to serve any prison time did not go over well with Sullivan. Via Andrew Prokop:

    Judge Sullivan: “Let me just say this, I probably shouldn’t. I don’t agree with the Petraeus sentence. Sorry.” (Four star general, classified information, he suggests it was too lenient.)

    Just because the judge has a penchant for holding prosecutors to account does not mean he doesn’t give a damn about the behavior of three and four star generals.

    Giving Sullivan 90 days to cool off is as good as the defense could hope for at the end of the day. That assumes, of course, that nothing happens in those three months to reignite Sullivan’s disgust for Flynn.

  3. Trip says:

    Thanks for writing this up bmaz. It was outrageous arrogance to put that stunt in his plea. Another thing Flynn thought he could get away with. It just doesn’t end.

    I don’t think what the judge did was a perjury trap. What Flynn (or his lawyers) wrote was a contradiction. I admit that I lied, but it wasn’t my fault is pretty much turning that agreement on its head, (by agreeing to be punished for something that you then say isn’t your responsibility). I think the judge made him pick one position.

    And the judge knew that the charge was a gift, and that Flynn was looking a gift horse in the mouth.
    He knows Flynn sold out the country, aside from lying to the FBI.

    • Peterr says:

      Sullivan sounded much like a parent dealing with a 7 year old kid who, when caught with his hand in the cookie jar, simultaneously says (a) I’m sorry and (b) it’s my sister’s fault. Says dad, “Sorry, pal, but you gotta pick one of those two. And I’d be very very careful about which one I chose, if I were you. There’s a lot riding on your choice.”

  4. David Karson says:

    Way to go Judge Sullivan!  Will he calm down in 90 days, or will further Mueller indictments only serve to help him realize how Flynn and Trump have built a web of lies, deceit and are both traitors to their country.  I hope Sullivan keeps taking a patriotic stand.  What is happening in our country and national politics is akin to a thousand year flood and therefore deserving, IMHO, of thinking outside the box.
    Obviously, IANL, and further cooperation from Flynn might change things.

  5. Rapier says:

    Are lawyers essentially obligated to advance the arguments the client wants to make?
    Flynn has gone round the bend and it is easy to imagine him going high dudgeon in full General mode demanding the Fox News case be made.

    The moment I read the Sullivan Flynn exchange I knew what Fox would say, and so they did.

    I expect Tucker or Dobbs demanding that Sullivan be locked up tonight.

    • Alan says:

      No an attorney is not obligated to do anything the client asks, and if the client isn’t happy with that, the client can fire the attorney.  If the client and attorney had a contract for certain services to be performed, the client may have some recourse under the contract (if it is enforceable), but in general, getting discharged would be the only consequence for the attorney.

  6. Kevin says:

    From inside the courtroom, my impression was that nearly everything Sullivan did this morning was to prevent cries of foul play. He made some comment like “I know there are a lot of conspiracy theories out there…” not in connection with swearing him in, but still, he knows what’s going on.

    First, he swore Flynn in. Then he went through all the questioning about whether Flynn regrets his guilty plea. THEN he went into the lengthy discussion of why, if Flynn waited, he had a better shot at a good sentence.

    The strong impression I got sitting in the room was that he was preparing to sentence Flynn to some term of incarceration and that he was closing off any avenue for the entrapment crowd to claim Flynn was being sandbagged (the judge’s word). Swearing him in fits with that.

    • Kevin says:

      Further, though I agree that any more cooperation shouldn’t make a difference, Sullivan did go on and on about how he doesn’t like to sentence people until their cooperation is finished. If I were Kelner, I would have gotten the hint, too, that I should try to squeeze out every possible modicum (as he put it) of cooperation.

      • bmaz says:

        Here is the thing though, that is nuts by Sullivan. The SCO already had the cooperation they need from Flynn, and flat out said so. He is on the record with them, and maybe even before a grand jury. His cooperation is baked in. He was ALREADY available for testimony in the EDVA case via subpoena, and if he testified in any contrary manner, would be subject to new charges. This whole bit by Sullivan remains a bit absurd.

        • Alan says:

          IMO, if Judge Sullivan had sentenced Flynn at today’s hearing, it would have been for a term in prison, and that would have fed the noise machine. So I think Judge Sullivan may have thought it was in the interests of justice to give everyone, including the public, some time to reflect.

        • bmaz says:

          I think that likely too. Thing is, if it was justified today, it would still be justified in the future, nothing will have really changed except for Sullivan’s temper and giving himself a fig leaf to back off.

        • Trip says:

          I think he doesn’t want Flynn fucking around with fake conspiracy theories during the wait time. Letting him sweat it out before his sentence. Even if there is no more cooperation to be had by Mueller et al, there is “cooperation” in terms of not tossing poop at the investigation like a Trumpian monkey. Disparaging investigators while getting an insanely good curtain on Let’s make a deal, doesn’t fly with this judge, apparently. I’m glad he did it. He had a right to be pissed.

        • Alan says:

          Agreed that was probably also a factor, although that could have been solved by sentencing Flynn to a harsh prison term, but then the public might think judge is being unreasonable and it might make Flynn even more of a martyr to the noise machine.  So better to give Flynn more time and rope to hang himself, if that’s the road he wants to go down.

        • Trip says:

          Maybe you’re right. But he knows the depths of what Flynn is getting a pass on (which we only surmise).

          But also, the entire Flynn stunt had me going nuts, so maybe I am only empathizing with him.

        • Kevin says:

          Right, which is why I think it was aimed at countering the MAGA crowd if he had gone ahead with sentencing and gotten jail time. “I warned him I like to see cooperation complete but he wanted to go ahead” type of thing. The risk for Flynn now is that there will be more public information when sentencing does come around that has the potential to look even worse for him.

        • MattyG says:

          Implying perhaps Sullivan read the tea leaves of the unredacted text that bigger shoes are (soon) too fall, against which a delay in sentencing will give more perspective to whatever jail term is applied.

        • Jenny says:

          Perhaps the redacted material Sullivan read helped with his decision today.  Flynn is arrogant and what he has done is betray his country.  Sullivan was straight up about that.

          Frankly, I am delighted with Sullivan’s words and actions.  It gives Flynn more time to contemplate his actions.

          I am toasting Judge Sullivan with a glass of red wine to celebrate.

        • Jenny says:

          MattyG  I agree.  Oops I meant “unredacted” material.  Otherwise Sullivan has x-ray vision; however that would be an excellent gift.

  7. Alan says:

    Agreed. Flynn and his attorneys forced the judge to ask for the original unredacted reports from Flynn’s Jan 24 FBI interview, so the judge could see for himself if there was any basis for Flynn’s misconduct claims.  And when the judge found the exact opposite–that the FBI was completely above board–the judge read Flynn and his attorneys the riot act.

  8. Curveball says:

    That foolish filing (atrocious lawyering) by Flynn’s defense team could have been interpreted only badly. Such as: “Of course the judge is going to rubber stamp this, but you should know that our client got slicked by the FBI.”

    Today’s hearing was one big “Oh, really?”

    Now, when crab pickin’ it’s always possible to reach for shells already cast aside and dig in the crannies for more, sometimes mining nice chunks of meat. Will Flynn go back to pickin’ on his own to please the judge?

    • Trip says:

      I’m not getting any signals yet from his idiotic spawn’s twitter account, he usually telegraphs the playbook. Last tweet was thanking Trump.

    • Troutwaxer says:

      I don’t get it either. The right wing conspiracy theory wants us to believe that:

      A:) The FBI agents were Flynn’s friend and allies and used this to deceive him into testifying without a lawyer


      B:) The FBI agents somehow caused Flynn to lie, something, something Deep State.

      So if you believe these two things, and you have some idea how Federal judges think, why not address A in your sentencing memo, which might gain some sympathy even if it’s not legally valid, and forget about B, because an attorney with any brains at all has to know it will upset the judge?

  9. Nole1 says:

    There may be other Trump associates who want to argue in the future that they were also not warned by the FBI that false statements to them could be a crime. Otherwise, this was a lot of energy expended by the right to advance a meme serving only one person.

  10. AndTheSlithyToves says:

    Question for the lawyers: If Flynn and his lawyers hadn’t raised the second long-form 302, how would it have come to the public’s attention?

  11. Eslinger says:

    Having Flynn sworn in seemed to be a necessary step leading to Judge Sullivan’s “call and response” in which Flynn had to clearly affirm the validity of the government’s case and his own culpability.

    However, the heat in Judge Sullivan’s remarks suggests to me that the sailing might not have been placid had Flynn’s team been more prudent in the sentencing memo.

    What might have happened today had Flynn’s team not taken the opportunity to delay sentencing?

  12. SteveB says:

    My take ;

    Sullivan was pissed, wanted to express it, wanted to make Flynn sweat, but figured that he’d probably have to go along with the no lock up recommendation, and induced the defence to adjourn so he could achieve all of the above and have a colorable reason for leniency in due course.


  13. jonb says:

    looks a if flynn is going to jail….if none of his coconspirators get jail time…The judge wants somebody to pay for potentially treasonous acts

    • Eureka says:

      I liked the cartoon, too.

      And thank you once again bmaz for your colorful insights, they really help me understand what is going on in a more meaningful way.

  14. Frank Probst says:

    From what I’ve read, it’s pretty clear that Sullivan didn’t want to do the sentencing today. The one factor that I don’t think is getting enough attention is Trump’s Tweet this morning. The President of the United States shouldn’t be cheerleading for someone who’s about to be sentenced for a crime. I suspect that this (further) infuriated Sullivan, and he wanted to put some distance between that Tweet and the actual sentence. I don’t know if there’s any judicial recourse for something like this, but he may want to kick it up the chain-of-command just to see what happens. This is the type of thing that I think John Roberts would make a public statement about. I also think that he was well aware of what he was doing when he used the word “treason”. He knows that it isn’t, but it shows that he considers what Flynn did to be VERY serious, and Flynn and his cheerleaders may want to back away from trying to minimize what’s happening here.

  15. hychka says:

    When you think stupid, think “No attorney in his right mind would do this,” think “Trump.”

    Trump was the “genius” behind this FUBAR.

  16. Bay State Librul says:

    Words matter and the Judge done good.

    I’ve argued before, and got my arse handed to me, that what Trump did was treason, pure and simple.
    I know, I know, the law doesn’t say, so but it looks like treason to me.
    Cyberwarfare is war.
    This lying shit reminds me of Old Roger Clemens denying that McNamee didn’t stick a needle of steroids up his ass. The court and lawyers gave him a pass, but he is still
    a lying sack of shit.
    A hurricane is a coming.
    All those fucking Republicans, (I’m talking to you, Rep Nunez, et al) should have bailed out and left the coast for higher ground.
    “The wind came back with triple fury, and put out the light for the last time. They sat in company with the others in other shanties, their eyes straining against crude walls and their souls asking if He meant to measure their puny might against His. They seemed to be staring at the dark, but their eyes were watching God.” Zora Neale Hurston
    Nunez should be indicted for obstruction of Justice (I know, I know, he is exempt?)

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