Rob Kelner–the Guy Who Signed Mike Flynn’s FARA Filings–Continued to Be Insubordinate in Yesterday’s Hearing

Most of the attention in yesterday’s Mike Flynn sentencing hearing has focused on Judge Emmet Sullivan’s invocation of treason, which I addressed at length here. But — particularly since I have belatedly realized that Rob Kelner is one of the lawyers referred to in the Bijan Kian indictment who filed a FARA registration that, because of lies attributed to Flynn and Ekim Alptekin, ended up being a false statement, I want to look at two bullshit answers Kelner offered yesterday about his little ploy of introducing language on Peter Strzok and Andrew McCabe in Flynn’s sentencing memo.

Taking the second one first, Sullivan asked Kelner to explain why he chose to cite Peter Strzok’s August 22, 2017 302, which had some language about what a successful liar Flynn can be, and not Flynn’s own utterly damning January 24, 2017 302. This was a question directing counsel to explain why he tried to pull a fast one over on the judge. Any responsive answer would have to address that January 24 302 (and wouldn’t need to address the McCabe memo, at all).

But instead of answering that question, Kelner instead tried to use it to attack the Mueller team.

THE COURT: The other puzzling question I have is this: Can you explain for the record why Mr. Flynn was interviewed by the FBI on January the 24th but the 302 cited in his sentencing memorandum is dated August the 22nd, 2017? There’s no reference, and the January 24th is not highlighted at all.

MR. KELNER: Yes, Your Honor. Thank you for the opportunity to address that. I think there’s been some public confusion about that. The original draft of our brief cited specifically to the FD-302 for the interview of Special Agent Strozk and cited it specifically to the McCabe memorandum, and actually originally we intended to include those documents with the filing. Prior to the filing, we shared a draft copy of our brief with the Special Counsel’s Office really for two purposes: One was to make sure that we weren’t including anything covered by the protective order, which they objected to our including, which would, perhaps, have to be redacted or filed under seal; and the other reason, frankly, was generally to understand what their reaction might be to particular points in the filing. After that, the Special Counsel’s Office discussed it with us and asked that we consider removing the Strozk 302, and the McCabe memorandum from the brief and to simply cite to them. Given our position as cooperating in the investigation, we acceded to that. We then sent them a draft of the footnotes that we would use to cite to the relevant documents, and originally those footnotes, as drafted by us, named the McCabe memorandum specifically and named the Strozk 302 specifically so that it would be clear to the reader which documents we were talking about. The Special Counsel’s Office requested that we change those citations to simply reference the memorandum and date and the FD-302 and date without the names. We acceded to that request, and I would add would not have acceded to it if in any way we felt it was misleading, but we respected the preferences of the Special Counsel’s Office.

THE COURT: All right. Any objection to what counsel said? Anything that you wish to add to that?

MR. VAN GRACK: Judge, just one point of clarification.


MR. VAN GRACK: Which is what we’ve represented to defense counsel in terms of what to and not to include, what we indicated was anything in the Strozk 302 and the McCabe memorandum that they thought was relevant can and should be included in their submissions. What we asked was that they not attach the documents because, as the Court is aware, there are other considerations in the material there that we wanted to be sensitive to.

Look closely: Kelner never actually answers Sullivan’s question, at all. Instead, he blames the decisions surrounding how those materials were cited in Flynn’s memo (which was not Sullivan’s question) on Mueller’s office.

Mueller’s team probably withheld the filings because there are legal proceedings involving both McCabe and Strzok. You can argue that those legal proceedings served as an excuse to hide embarrassing information and you might even be right. But that doesn’t give you permission to just blow off a legitimate question from the judge.

The second one is, given Kelner’s tenure of representation for Flynn, even more egregious.

Sullivan unsurprisingly expressed difficulty squaring the suggestion that there were extenuating circumstances to Flynn’s brazen lies in his FBI interview with Flynn’s claim that he was accepting responsibility for his actions. So the judge asked Kelner why he included them.

THE COURT: The references that I’ve mentioned that appear in your sentencing memorandum raise some concerns on the part of the Court. And my question is, how is raising those contentions about the circumstances under which Mr. Flynn lied consistent with acceptance of responsibility?

MR. KELNER: Your Honor, the principle reason we raised those points in the brief was to attempt to distinguish the two cases in which the Special Counsel’s investigation has resulted in incarceration, the Papadopoulos and Van der Zwaan cases in which the Special Counsel had pointed out as aggravating factors the fact that those defendants had been warned and the fact that those defendants did have counsel and lied anyway, and we felt it was important to identify for the Court that those aggravating circumstances do not exist in this case relevant to sentencing.

Kelner — the guy who signed a FARA registration that he might have faced his own legal consequences for if it weren’t for his client’s guilty plea accepting responsibility for the lies told in the registration himself — completely ignored Flynn’s FARA lies, both in his answer to this question and the brief generally. Flynn not only had benefit of counsel when he told one of the lies he pled guilty, again, to telling yesterday, Flynn had benefit of his, Rob Kelner’s, counsel.

And Kelner is only avoiding consequences for those FARA filings himself because (the existing story goes) his client is such an egregious liar, he has also lied to him, his lawyer, in the past.

That seems like a pretty major aggravating factor.

Much later in the hearing, when Kelner realized his client was facing prison time, he tried to take responsibility for all the things that showed up in that sentencing memo. Rather than leaving well enough alone, Kelner renewed his bullshit claim that what George Papadopoulos and Alex Van Der Zwaan did was worse than lying to the FBI and hiding your paid ties to a frenemy government. That led to Sullivan pointing out why even just Flynn’s lies to the FBI were, because he was in such an important role, worse than those of Mueller’s other false statements defendants.

MR. KELNER: Your Honor, with your indulgence, if I could make a few points.


MR. KELNER: First of all, let me make very clear, Your Honor, that the decisions regarding how to frame General Flynn’s sentencing memorandum made by counsel, made by me, made by Mr. Anthony, are entirely ours and really should not and do not diminish in any way General Flynn’s acceptance of responsibility in this case. And I want to make that —

THE COURT: That point is well taken, but you understand why I had to make the inquiry?


THE COURT: Because I’m thinking, this sounds like a backpedaling on the acceptance of responsibility. It was a legitimate area to inquire about. And I don’t want to be too harsh when I say this, but I know you’ll understand.


MR. KELNER: Right. We understand the Court’s reason for concern. I just wanted to make very clear the very specific reasons that those sections in the brief were included, to distinguish the Papadopoulos and Van der Zwaan cases, which did result in incarceration, we think are meaningfully distinguishable in many respects.

THE COURT: Let me stop you on that point, because I’m glad you raised that, and I was going to raise this point at some point. We might as well raise it now since you brought up Papadopoulos and Van der Zwaan. The Court’s of the opinion that those two cases aren’t really analogous to this case. I mean, neither one of those individuals was a high-ranking government official who committed a crime while on the premises of and in the West Wing of the White House. And I note that there are other cases that have been cited in the memorandum with respect to other individuals sentenced in 2017, I believe, for 1001 offenses, and the point being made — and I think it’s an absolutely good point — the point being made that no one received a jail sentence. My guess is that not one of those defendants was a high-ranking government official who, while employed by the President of the United States, made false statements to the FBI officers while on the premises of and in the West Wing of the White House. That’s my guess. Now, if I’m wrong, then you can point me to any one or more of those cases. This case is in a category by itself right now, but I understand why you cited them. I appreciate that.

MR. KELNER: Your Honor, we don’t disagree. We recognize that General Flynn served in a high-ranking position, and that is unique and relevant. But I —

THE COURT: Absolutely.

But Kelner took that comment, and kept digging, claiming that Flynn’s cooperation should be worth more because his cooperation was more “consequential” than that of the little people.

MR. KELNER: But I would submit to you a couple of points in response for the Court’s consideration. Number one, because of his high rank and because of his former high office, when it came time to deal with this investigation and to deal with the Special Counsel’s Office, that, too, set a higher standard for him, and he did understand that as a three-star general and a former National Security Advisor, what he did was going to be very consequential for the Special Counsel’s investigation, and very consequential for the nation, so he made decisions early on to remain low profile, not to make regular public statements, as some other people did. That was acknowledged by the Special Counsel’s Office when we did first hear from them, the value of that silence. And then he made the decision publicly and clearly and completely and utterly to cooperate with this investigation, knowing that, because of his high rank, that was going to send a signal to every other potential cooperator and witness in this investigation, and that was consequential, and we appreciate the fact that the Special Counsel memorialized that in his brief. That did make a decision, and that was another kind of high standard that was set for him and that he rose to and met decisively. In addition, there have been other cases —

Sullivan interrupted Kelner at this point, perhaps in an effort to get him to stop damaging his client. It didn’t work though, because having argued that Flynn’s efforts to undo his lies were worth more than that of the little people, Kelner then … brought up David Petraeus.

THE COURT: Can I just stop you right now? Is — How do you wish to proceed? Do you wish to proceed with sentencing today or do you want to defer it?

MR. KELNER: Thank you, Your Honor.

THE COURT: Or are you leading up to that point?

MR. KELNER: I’m leading up to that.

THE COURT: No, that’s fine.

MR. KELNER: Just a bit of indulgence, if I may.

THE COURT: No, no. Go ahead. That’s fine.

MR. KELNER: And let me just finish that last point.

THE COURT: No, no, no. I’m not trying to curtail you. I just wanted to make sure I didn’t miss anything.

MR. KELNER: I’m building up to it. I’m building up to it, Your Honor.

THE COURT: All right.

MR. KELNER: In addition, I would note there have been other high profile cases, one involving a four-star general, General Petraeus.

THE COURT: I don’t agree with that plea agreement, but don’t —

MR. KELNER: It’s a classic —

THE COURT: He pled to a misdemeanor?

Right before Sullivan closed the hearing, he expressed his disapproval of that sentence once again with Kelner, presumably as a warning not to argue Flynn should get light treatment, like Petraeus did, because he’s an important decorated general.

While bringing up the double standard the Obama Administration used with Petraeus is totally fair game, especially in Espionage-charged leak cases (which this is not), this was an instance where Kelner either couldn’t hear or didn’t give a fuck about what the judge had already told him, which is that, having read all the sealed underlying documents, he believes the stuff Flynn lied about “is in a category by itself.”

Honestly, if I were Mike Flynn and I had the money I’d fire Kelner after recent events, because — even if Kelner is not responsible for the ploy that badly backfired (and I suspect he’s not, at least not entirely) — by returning to sentencing with a different lawyer, you can try to start fresh with Sullivan, whom you’ve already pissed off.

But it’s not clear that Flynn can do that.

Because while firing Kelner might permit Flynn to claim he had nothing to do with this disavowal of responsibility that Kelner is now claiming responsibility for, Kelner’s still required to claim that Flynn is responsible for the false statements submitted in a document signed by Kelner back in 2017.

More importantly, according to Kelner, the Kian trial is the only thing left for Flynn to offer as far as cooperation.

Nothing has been held back. That said, it is true that this EDVA case that was indicted yesterday is still pending, and it’s likely, I would think, that General Flynn may be asked to testify in that case. We haven’t been told that, but I think it’s likely, and he’s prepared to testify. And while we believe that the Special Counsel’s Office views his cooperation as having been very largely complete, completed at this point, it is true that there’s this additional modicum of cooperation that he expects to provide in the EDVA case, and for that reason, we are prepared to take Your Honor up on the suggestion of delaying sentencing so that he can eke out the last modicum of cooperation in the EDVA case to be in the best position to argue to the Court the great value of his cooperation.

It seems likely that if Kian goes to trial, it will be Kelner’s testimony, not Flynn’s, that might be most important.

Kelner and Flynn are yoked together, Kelner to the lies Flynn told him to file in that FARA filing, and Flynn to the insubordinate effort to dismiss the importance of Flynn’s lies.

As I disclosed in July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

66 replies
  1. orionATL says:

    i’m almost certain judge sullivan was in earnest and not setting any traps for kelner with his questions,  but, honest to god, he might have well have been. it is very interesting to read a dialogue that is so dense with two “opponents” asking and answering knife-edge questions. sullivan clearly was thinking his way thru this thicket of facts, but i wonder if kelner didn’t sort of black out with the realization of what he had done to his client and just try to blythly wing it past the judge. if i had done something like this that backfired so badly, i think i might have been too embarrassed to continue, but i guess kelner had to put on a brave face and soldier on.

  2. Peterr says:

    I put this in the Black Holes comments, but it’s even more on point here.

    It would have sidetracked the main event, but I would love to have heard Sullivan reply to the Kelner’s “don’t hold my comments against my client” plea with something like “Are you sure about that? Are you now telling me that you lied to the court when you wrote that your client was (paraphrasing here) entrapped by the FBI? He just told me he’s guilty, and that he knew that he shouldn’t lie to the FBI, and your filing strongly implied otherwise. If I accept your comment just now and therefore am not going to punish him for that filing, how about we set a date to discuss your punishment?”

    Seriously, you can’t look at the defense presentencing memo, set it next to what Flynn said to Sullivan, and not conclude that someone is lying. What does it take to get a lawyer sanctioned by the judge or the bar for filing something contradicted by his own client?

  3. NorskieFlamethrower says:

    “Kelner and Flynn are yolked together, Kelner for the lies Flynn told him to file in that FARA filing, and Flynn to the insubordinate attempt to dismiss the importance of Flynn’s lies.”

    I just want to absorb that statement… how can our system of justice function at all if those who practice in cases as important and high profile as these can get knowingly tangled up in their clients repeated lies expecting to get away with it? Did Kelner think Judge Sullivan was deaf, couldn’t read and was stupid?!!

    • Robert Wunder says:

      Criminal defense attorneys get “tangled up” in their client lies all the time.  Its part of the job to navigate. The point is, the Defendant Flynn and the defense attorney will remain together, despite this setback.

    • new-radical says:

      So who is Kelner? I read he was “top drawer” but I can’t find much, except that he wrote his thesis about Russia and seem to have some Russian experience/knowledge/background.

      I made an earlier post expressing my thoughts as a professional organizational strategist, that I couldn’t figure the strategy (the entrapment BS). As the strategy (sic) failed, I made these points: If it was Flynn’s idea, Kelner should resign for the incompetence of allowing the defendant to shit all over himself (he has now stated that is was his own idea, but it is not clear at all that this is true nor that the reasoning is true). If it was the lawyers strategy he should resign for his own incompetence. Or is there something else going on?

      They are clearly Siamese Twins joined at the hip pocket. Kelner must know that Flynn is a liar.  So what about Kelner? Just because he is a lawyer! He is an incompetent, he is a buffoon and he is dishonest if he represents Flynn as truthful when he knows Flynn is a liar. What does that mean in terms of his capacity to practice law?

      The strategy is now clear to me, I think!

      From Kelner’s perspective, just keep this going for as long as possible to rake in those sleazy legal fees. Make up any shit you can to keep Flynn out of the nick so he can go back to his sleazy, duplicitous dealings and Kelner can remain a “top drawer” legal mind.

  4. Robert Wunder says:

    Kelner’s gambit may have been a huge error, but he did not, Peterr, say in the sentencing memo that his client was entrapped.

  5. Rusharuse says:

    Whoever thought this was a good opportunity to further the deep state/McCabe/Comey theory will be most disappointed when they see Gen Flynn fulfilling his full co-operation commitment in front of the house intel comittee in January . . on live TV.

  6. Trip says:

    So the Junior retweeted how disappointed and angry the fans are that their hero was called a traitor. “no amount of walking back will make up”. There’s your game plan from Flynn camp. Learn nothing, proceed with arrogance and ignorance.

  7. Semanticleo says:

    Is Kelners incompetence just another stratagem? Flynn apparently has average intelligence and still can’t see how he’s being poorly served?

  8. Charles says:

    I still suspect that what we saw was in some degree theater, whose goal was to make it clear to Flynn that he had to give an earnest display of contrition and to Kelner that he better not play games in the courtroom. I don’t believe the judge and the prosecutors were unsure of what constitutes treason, but that the judge wanted to signal to Flynn and Kelner that life could be a lot worse.


    I would also be entirely unsurprised if the OSC doesn’t have some nasty surprises in store for both Flynn and Kelner if they don’t straighten up and fly right. Given how effortlessly both of them lied, I doubt they have come clean. And if they haven’t come clean… well, Flynn is an admitted felon. If Kelner did know about the false filing or if Kelner were involved in communication with the White House, Flynn could earn some points by flipping on his own lawyer.

  9. P J Evans says:

    OT: SCO apparently has asked for an official transcript of Roger Stone’s testimony before the House intelligence committee.

    • Charles says:

      Hi, new-radical. I got the Reply function to work by forcing a system update.

      what can Sullivan actually do about Kelner if he knows/suspects Kelner is being dishonest?

      I am no lawyer; maybe one of the lawyers on the thread can provide a better answer. My guess is that Sullivan has a wide range of remedies. The simplest is public humiliation. He already gave Kelner a sample, and I’ll bet that Kelner’s law partners at Covington have more than a word with him. They can probably reduce his responsibilities or his compensation. He might lose clients who might be afraid of conducting business before Sullivan.

      If he believes that the violation is ethical, he could, of course, refer him to the local bar association. Since Kelner is a very senior member of the DC Bar (Chairman of their Legislative Practice Committee) that’s not likely. If Sullivan is certain that Kelner lied, then he could hold him in contempt of court (as happened for example to this lawyer). I also doubt that would happen.

      The simplest course of action would be to invite the prosecutor, van Grack, to his chambers for a discussion and raise the question of whether Kelner may have committed a crime. What follows would be out of the judge’s hands, but it could be really bad news for Kelner.

      So, I dunno. Law is not my world, but I have noticed that lawyers are very, very deferential to judges, and I suspect there’s a reason.



  10. scribe says:

    The rules of ethics for lawyers permit a lawyer to decline, or terminate, a representation when the client’s aims are or become repugnant to the lawyer.
    So … this guy has a very high bar when it comes to “repugnant”.
    In my years in practice I’ve seen it time and again: clients get the lawyer they deserve, and lawyers get the clients they deserve. And that is not only insofar as it relates to lawyerly skill, but even moreso as it relates to moral fiber.
    More to the point, though, Flynn’s lawyer can arguably be seen as an accessory to Flynn’s crime, insofar as it relates to the false statements in the documents the lawyer signed and filed. Or as a co-conspirator.
    Frankly, he’s being (or has been) hung out to dry by his client and should, in a just world, stand a good chance of losing his license. He won’t, be sure about that, because it would seem he’s deeply wired in. But I cannot see any way out of the conflict he placed himself in by, on the one hand, participating in the actual crime (he can say he was duped all he wants, but really) and then defending the perp (and doing a shitty job of it). Bruce Cutler was DQ’d from representing John Gotti on the government’s motion – he was deemed to have been giving Gotti advice on how to commit his crimes, instead of just telling him what the law was and how to not commit crimes. Cutler’s DQ was controversial at the time. But I can’t see why the Special Counsel is letting this lawyer stay on the case when his participation in the underlying events will likely lead him to have to testify. Flynn would have a decent argument that his counsel has been ineffective because counsel’s own conduct has him over a barrel with the government and he may have sold out Flynn (or so he’d argue)..
    And, FWIW, if I was in the judges robes, Flynn would still be getting the statutory maximum, even after I took three months to cool off, sweetheart deal to the contrary notwithstanding..

    • new-radical says:

      Great info scribe, thanks.

      I asked a couple of questions late on yesterday’s thread. The first part has been answered, Flynn’s business partner may be exposed to 5 or 10 years depending on the charges and pleas.

      But the second part is contained in another question in response to your post. So what is the “statutory maximum” for Flynn. Is it the 6 months, as per his guilty plea. Or is it more, for that plea, but at the judges discretion. Or can the judge go full bat-shit (sorry, I should be more respectful) based on the evidence he has for which there has been no trial. Or even take into account the exposure of Flynn’s business partner, should he plead, as others have suggested he probably will, rather than go to trial

    • emptywheel says:

      Yeah, I don’t think people are thinking this through, really.

      But Kelner is all over that Kian indictment.

        • bmaz says:

          It may, it may not. That is up, initially, to the client, and then to the opposing party and court. They can sort through it just fine on their own, and know a LOT more than the rest of the public.

  11. Drew says:

    The statutory maximum for the crime Flynn is pleading guilty to is 5 years. I’m not sure whether there are factors that impinge on the judge’s discretion to go that far above the guidelines, there may be, though it seems like Sullivan might have done his arithmetic factoring in aggravating circumstances with cooperating credit and come up with 6 months in the slammer if they sentenced yesterday. Cute games over the next 3 months might convince Sullivan to be even more bold.

  12. Frank Probst says:

    Apologies for being so clueless, but I missed this the first time I read through it.  They sent their draft memo to Mueller’s team.  The reason was to make sure that there was nothing in it that shouldn’t be released to the public, but still, Mueller’s team read the memo beforehand.  Technically, the two teams are adversaries, but they were cooperating at this point.  Is it possible or likely that someone from Mueller’s team said, “Um, your memo is pure horseshit.  We’re trying to keep your client out of prison.  If you try to make this argument in your sentencing memo, we’ll probably have to respond to it, and it won’t be pretty.  Maybe you should just go with, ‘Yeah, what they said.’  That’ll make this go a little smoother.”

  13. orionATL says:

    well it is possible that kelner is nominally flynn’s lawyer, but is loyal to a party (who is paying him) that wants to emphasize flynn as victim, i.e., “deep state” hocus-pocus, for political benefit.

    certainly, kelner showed no concern or remorse that is obvious  -1he had his story and he was sricking to it. curious.

  14. Alan says:

    IMO, 5 years, all of it suspended on the condition Flynn not contradict his guilty plea (by claiming he was tricked, did not know it was wrong to lie, lacked the intent to lie, etc.)

  15. Trip says:

    “The Service Is Terrible”: Trump Is Returning to a Very Different Mar-a-Lago

    “The service is terrible, if you’re not in, like, the four tables around the president, forget it,” says one longtime member. “The servers aren’t well-trained. You have to beg for water. The food is the same menu year after year. People complain about it. It’s just not good.” The “Trump Wedge Salad” is an enormous slab of iceberg lettuce covered with so much glutinous blue cheese dressing that the dish should rightfully be called “Trump Wedge Salad Dressing.” “Trump Chocolate Cake” is a humungous tranche of cake so sweet that it is a wonder there aren’t dentists on call to deal with cavities…People I had no idea were critical of the president are now speaking out, at least in a Palm Beach manner. I was at a dinner party a few days ago where one member talked critically of Trump among people he didn’t even know. Everyone was all ears as he recalled a story, years earlier, in which he approached Trump in the Mar-a-Lago locker room and asked why he was running around saying that President Barack Obama was born in Kenya. He recalled that Trump told him he knew it wasn’t true, and he only repeated the line to build enthusiasm among his supporters.

    Methinks it is the same Maralago, but the shine wore off for the patrons.

  16. klynn says:

    With the Syria Surprise, was a message delivered to Trump during one of the breaks at the hearing? Did Kelner place a call for his client during one of them?

  17. Trip says:

    @ Klynn Or is it a rushed “quo” before Trump gets pummeled? Along with sanctions being lifted for Deripaska?

    There are positive and negative elements to the Syria withdrawal. But the delivery, timing, lack of planning and preparation is somewhat off the wall.

  18. Trip says:

    Israel plans to increase its efforts again Iran in Syria

    On Wednesday Netanyahu said he had received advanced warning of the pullout in telephone conversations with US President Donald Trump on Monday, and US Secretary of State Mike Pompeo on Tuesday. Britain had been in discussion with U.S. President Donald Trump’s administration for several days regarding his decision to withdraw troops from Syria, Prime Minister Theresa May’s spokesman said on Thursday…”We don’t see any indication of U.S. withdrawing troops as of yet but I accept that it may be happening.”Is the presence of American troops necessary here? I think not. And lets not forget that the presence of your troops is illegitimate. We are in Syria on its invitation. “If the U.S. has decided to withdraw its contingent – that is correct,” Putin said.

    Jerusalem Post

    Interesting how the Pentagon was supposedly sucker-punched and left out of the loop, as well as the WH, in general, not to mention congress.

  19. Francis says:

    Anyone know where I can find a transcript of the flynn sentencing hearing? I’m seeing people quote chunks of it, but my google-fu isn’t turning anything up

  20. scribe says:

    Responding to “new-radical” upthread, AFAIK the statutory maximum for a false statements charge is 5 years. Same for a FARA charge. (5 years seems to be the pretty consistent statutory max for federal felonies.)
    The baseline rule regarding sentencing on a plea bargain is that the judge is informed of the parties’ agreement as to what the guilty pleader gets for a sentence, but their agreement cannot govern what the judge does. Similarly, the judge is guided by the pre-sentence report (prepared by the probation people) as to what the offense level is and what the criminal history is, those two combining to yield a sentencing range. That range would be expressed in a number of months of incarceration, with upper and lower bounds anywhere between zero and hundreds (depending on the offense and criminal history). The judge can engage in what are called “departures”, i.e., sentencing outside the sentencing range. The departure can be “upward” (more months) or “downward” (fewer months). The judge has to justify his decision by giving a statement of reasons, after considering the 7 factors set forth in the statute. You can read the factors, as stated in the statute, here:
    You can also read “the basics” of federal sentencing here: Keep in mind that “the basics” is a 49-page single-spaced pdf document. Last time I picked up a copy of the Federal Sentencing book I hurt my shoulder. It comes in at over 2000 pages.
    There are lawyers who make a nice practice specializing in federal sentencing issues.

    • bmaz says:

      There are lawyers who make a nice practice specializing in federal sentencing issues.

      Indeed. And they come at a premium price, along with the BOP experts they have to prepare your client for prison. Any decent trial lawyer can hire one, and quite often does. If your client has the dough, then easy to do. In most cases, that is not the case.

  21. scribe says:

    Replying to EW upthread, who in turn was replying to me:  I, for the life of me, cannot see why Kelner’s firm’s internal ethics police have not forced him off the case.  If he’s a Covington lawyer (IDK – it seems someone mentioned that sometime) my experience with them is that they are (like most large firms) astonishingly sensitive to pushing the ethical bounds, at least when it comes to themselves being dragged in.  As seems to be the case here.  Those kind of problems impact the firm bottom line and that, above all else, is too important for them to ignore.  FWIW, remember Greg Craig – part of the Ukrainian side of these dealings, you’ll recall – is/was a Covington partner until he decided to take his practice elsewhere.  (Pushed, not jumped.)

    But, going to a different angle, I think Sullivan’s mention of treason was designed to blow the foam off the beer.  There’s been a lot of overheated rhetoric and by asking the prosecution if they’d considered it, getting a gobsmacked pause and then a clear “no – doesn’t apply”, Sullivan managed to calm things a bit.  At least among the sentients not deeply into howling, chasing and killing that fox.

    And I think Sullivan is going all Jonathan Edwards “Sinners in the Hands of An Angry God” on Flynn, letting him dangle over the fires of Hell for a quarter on condition of repentence and cooperation.  See, e.g.,

    The first of the “considerations” (points of argument) in the sermon is most germane:  There is nothing that keeps wicked men at any one moment out of hell, but the mere pleasure of God.

    A colleague used to practice consumer bankruptcy law down South and made a point of telling his clients to “dress like you’re going to Church, because that judge is God to you.”  Flynn (and Kelner) seem to have forgotten that.

    • bmaz says:

      Emmet Sullivan ought to get his head out of his ass before “blowing the suds off the beer” next time. It was an asinine and completely inappropriate thing to have brought up in that manner. If the SCO wanted Kelner gone, they could have filed a motion for determination of counsel. They did not. If there court found such an issue it could have raised it sua sponte. It did not. Covington has a fee agreement with the client, and Kelner and Anthony are lead counsel of record; Covington not going to force them off because it would look stupid and hand a legal cause of action to Flynn.

      • Alan says:

        Interestingly, the judge did call Kelner’s representation into question, and offered Flynn alternate counsel, when (according to Lawfare), the judge asked Flynn the following questions.  See #7

        “Do you wish to challenge the circumstances on which you were interviewed by the FBI?”
        “Do you understand that by maintaining your guilty plea and continuing with sentencing, you will give up your right forever to challenge the circumstances under which you were interviewed?”
        “Do you have any concerns that you entered your guilty plea before you or your attorneys were able to review information that could have been helpful to your defense?”
        “At the time of your Jan. 24, 2017 interview with the FBI, were you not aware that lying to FBI investigators was a federal crime?”
        “Do you seek an opportunity to withdraw your plea in light of [new] revelations” referred to in your brief?
        “Are you satisfied with the services provided by your attorneys?”
        “Do you want the court to consider appointing an independent attorney for you in this case to give you a second opinion?”
        “Do you feel that you were competent and capable of entering into a guilty plea when you [pleaded] guilty on Dec. 1, 2017?”
        “Do you understand the nature of the charges against you the consequences of pleading guilty?”
        “Are you continuing to accept responsibility for your false statements?”
        “Do you still want to plead guilty, or do you want me to postpone this matter, give you a chance to speak with your attorneys further, either in the courtroom or privately at their office or elsewhere, and pick another day for a status conference?”

        • bmaz says:

          Eh, no, asking about being satisfied with the representation afforded you by your counsel is a standard part of any and every sentencing protocol in a criminal trial court, from lowly municipal courts all the way up to federal district courts. Mundane in every way. The other questions were directed at Flynn.

    • Eureka says:

      Reading along at the cited wiki, glimpsing misc. historical and pop-cultural figures, until arriving at item seven of the sermon, whereupon I burst into laughter:

      Simply because there are not visible means of death before them at any given moment, the wicked should not feel secure.

      Some phrasings just get me (cf. EoH on the “only mildly literate” Whitaker).  But here I am reminded of a mid-90s stand-up comedy routine by the highly droll Steven Wright:

      I could die now.  Or now.  Or now or now or Now.

      Angst springs eternal.

  22. P J Evans says:

    That review goes with the one of the 16th-floor restaurant in Himself’s Chicago tower, here. Apparently you pay extra for the name on the building, but the food is the kind of stuff you’d find at the cheap places anywhere else.

  23. Trip says:

    @P J Evans, yeah, it’s about the name and status seeking. I mean, these people were members of Trump’s club for years, the menus have always been the same, and suddenly they’re put off by the chocolate cake? Naw, they thought they were upscale with Trump, now that his name is a downgrade, they can admit it sucks.

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