Prosecutors Invite Emmet Sullivan to Throw the Book at Mike Flynn

Technically, the scathing sentencing memo for Mike Flynn the government just submitted calls for the same sentence they called for in December 2018, when he was first set to be sentenced, something they note explicitly: a guidelines sentence of 0-6 months in prison.

[T]he government recommends that the court sentence the defendant within the applicable Guidelines range of 0 to 6 months of incarceration.


The government notes its decision to withdraw its motion for substantial assistance has no impact on the applicable Guidelines range, which will remain 0 to 6 months of incarceration.

But in their sentencing disparity section, they argue Flynn’s actions are worse than those of George Papadopoulos and Alex van der Zwaan (because of his position of trust and security clearance) and Rick Gates and James Wolfe (because they accepted responsibility), all of whom served prison time.

Along the way, they give Judge Emmet Sullivan all the ammunition he needs and write the memo in such a way as to invite him to, at least, sentence Flynn at the top of a guidelines sentence, 6 months of prison.

Before Flynn fired the very competent Rob Kelner and hired Fox News firebreather Sidney Powell and then blew up his cooperation deal, the government had argued he should be sentenced at the low end of that range, meaning probation. They justify implying he should get a real prison sentence now because of the way he undermined the prosecution of his former partner, Bijan Kian, and reneged on his acceptance of responsibility.

Given the serious nature of the defendant’s offense, his apparent failure to accept responsibility, his failure to complete his cooperation in – and his affirmative efforts to undermine – the prosecution of Bijan Rafiekian, and the need to promote respect for the law and adequately deter such criminal conduct, the government recommends that the court sentence the defendant within the applicable Guidelines range of 0 to 6 months of incarceration.

The government lays out two ways Flynn undermined the Bijan Kian prosecution

Flynn’s reversal on the Kian case is important because — according to the cooperation addendum submitted in 2018 — that’s the one investigation in which he provided “substantial cooperation.

Notably, only the assistance he had provided in the Rafiekian case was deemed “substantial.”

Over the last six months, Flynn has negated all that cooperation.

In light of the complete record, including actions subsequent to December 18, 2018, that negate the benefits of much of the defendant’s earlier cooperation, the government no longer deems the defendant’s assistance “substantial.”

The government substantiates that Flynn changed his testimony by including Kian trial exhibits, Flynn’s grand jury testimony, a Flynn 302, two Rob Kelner 302s (two), and the 302 from another of the lawyers who helped submit his FARA filing. After having substantiated that Flynn reneged on his cooperation, the government then lays out another way Flynn undermined Kian’s prosecution — by contesting that he was Kian’s co-conspirator.

Remarkably, the defendant, through his counsel, then affirmatively intervened in the Rafiekian case and filed a memorandum opposing the government’s theory of admissibility on the grounds that the defendant was not charged or alleged as a coconspirator. See Flynn Memorandum Opposing Designation, United States v. Bijan Rafiekian, No. 18-cr-457 (E.D. Va July 8, 2019) (Doc. 270). This action was wholly inconsistent with the defendant assisting (let alone substantially assisting) or cooperating with the government in that case.12 Accordingly, while the defendant initially helped the prosecutors in EDVA bring the Rafiekian case, he ultimately hindered their prosecution of it.

The government then rebuts first one counterargument Flynn might make — that he should get credit for cooperating anyway since he waived privilege so his Covington lawyers could testify.

12 Any claim by the defendant that the Rafiekian prosecution was aided by his agreement to waive the attorney-client privilege and the attorney work-product doctrine regarding his attorneys’ preparation and filing of the FARA documents would be unfounded. The defendant explicitly did not waive any privileges or protections with respect to the preparation and filing of the FARA documents. No waiver occurred because the government (and the defendant’s attorneys) did not believe a waiver for such information was necessary—information provided to a lawyer for the purposes of a public filing is not privileged. The district judge in Rafiekian agreed with that conclusion, and permitted the defendant’s attorneys to testify about what the defendant and Rafiekian told them because those statements were not privileged or protected as opinion work product. See United States v. Rafiekian, No. 18-cr-457, 2019 WL 3021769, at *2, 17-19 (E.D. Va. July 9, 2019).

And they obliquely rebut an argument that Powell has already made — that EDVA prosecutors chose not to call Flynn only to retaliate against him.

13 The government does not believe it is prudent or necessary to relitigate before this Court every factual dispute between the defendant and the Rafiekian prosecutors. The above explanation of the decision not to call the defendant as a witness in the Rafiekian trial is provided as background for the Court to understand the basis for the government’s decision to exercise its discretion to determine that the defendant has not provided substantial assistance to the government. The government is not asking this Court to make factual determinations concerning the defendant’s interactions with the Rafiekian prosecutors, other than the undisputed fact that the defendant affirmatively litigated against the admission of evidence by the government in that case.

Finally, they quote a Kian filing saying for them what they therefore don’t have to say in such an inflammatory way: Flynn tried to game the Kian prosecution in such a way that he got to benefit from the plea deal without admitting his guilt.

Rafiekian’s counsel characterized the “new Flynn version of events” as “an unbelievable explanation, intended to make Flynn look less culpable than his signed December 1, 2017 Statement of Offense and consistent with his position at his sentencing hearing. In short, Flynn wants to benefit off his plea agreement without actually being guilty of anything.” See Defendant’s Memorandum Regarding Correction at 5, United States v. Bijan Rafiekian, No. 18- cr-457 (E.D. Va. July 5, 2019) (Doc. 262).

The government asks Judge Sullivan to allocute Flynn again

Which may be why the government twice asks Judge Sullivan to force Flynn to admit his guilt again if he wants credit for it in sentencing.

Indeed, the government has reason to believe, through representations by the defendant’s counsel, that the defendant has retreated from his acceptance of responsibility in this case regarding his lies to the FBI. For that reason, the government asks this Court to inquire of the defendant as to whether he maintains those apparent statements of innocence or whether he disavows them and fully accepts responsibility for his criminal conduct.


Based on statements made in recent defense filings, the defendant has not accepted responsibility for his criminal conduct, and therefore is not entitled to any such credit unless he clearly and credibly disavows those statements in a colloquy with the Court.

The government lays out evidence of Flynn’s perjury before Emmet Sullivan

But there may be another reason the government invites Sullivan to allocute Flynn again. In an extended passage, the government basically lays out evidence that — given his statements made in the last six months — Flynn perjured himself before Judge Sullivan on December 18, 2018, when the judge had the prescience to put Flynn under oath.

During the hearing, the Court engaged in a dialogue with the defendant concerning arguments in his sentencing memorandum that appeared to challenge the circumstances of the January 24 interview. See 12/18/2018 Hearing Tr. at 6-7. However, when questioned by the Court, the defendant declined to challenge the circumstances of that interview. Id. at 8. When pressed by the Court about whether he wanted to proceed with his guilty plea “[b]ecause you are guilty of this offense,” the defendant unequivocally responded, “Yes, Your Honor.” Id. at 16. And when the Court asked whether he was “continuing to accept responsibility for [his] false statements,” the defendant replied, “I am, Your Honor.” Id. at 10. The defendant’s recent conduct and statements dramatically differ from those representations to the Court, which he made under oath.

Six months later, in June 2019, the defendant began retracting those admissions and denying responsibility for his criminal conduct. Far from accepting the consequences of his unlawful actions, he has sought to blame almost every other person and entity involved in his case, including his former counsel. Most blatantly, the defendant now professes his innocence. See, e.g., Reply in Support of His Motion to Compel Production of Brady Material and to Hold the Prosecutors in Contempt at 2, 6, United States v. Flynn, 17-cr-232 (D.D.C. Oct. 22, 2019) (Doc. 129-2) (“Reply”) (“When the Director of the FBI, and a group of his close associates, plot to set up an innocent man and create a crime . . . ;” alleging that text messages provided by the government “go to the core of Mr. Flynn’s . . . innocence”). With respect to his false statements to the FBI, he now asserts that he “was honest with the agents [on January 24, 2017] to the best of his recollection at the time.” Reply at 23. Such a claim is far from accepting responsibility for his actions. As the defendant admitted in his plea agreement and before this Court, during the January 24 interview the defendant knew he was lying to the FBI, just as he knew he was lying to the Vice President of the United States.

The defendant has also chosen to reverse course and challenge the elements and circumstances of his false statements to the FBI. See, e.g., June 6, 2019 Sidney Powell Letter to the Attorney General (Doc. 122-2) (“Powell Letter to AG”). The defendant now claims that his false statements were not material, see Reply at 27-28, and that the FBI conducted an “ambush interview” to trap him into making false statements, see Reply at 1. The Circuit Court recently stated in United States v. Leyva, 916 F.3d 14 (D.C. Cir. 2019), cert. denied, No. 19-5796, 2019 WL 5150737 (U.S. Oct. 15, 2019), that “[i]t is not error for a district court to ‘require an acceptance of responsibility that extended beyond the narrow elements of the offense’ to ‘all of the circumstances’ surrounding the defendant’s offense.” Id. at 28 (citing United States v. Taylor, 937 F.2d 676, 680-81 (D.C. Cir. 1991)). A defendant cannot “accept responsibility for his conduct and simultaneously contest the sufficiency of the evidence that he engaged in that conduct.” Id. at 29. Any notion of the defendant “clearly” accepted responsibility is further undermined by the defendant’s efforts over the last four months to have the Court dismiss the case. See Reply at 32.7

This effectively lays out a catch-22 for Flynn: either he makes a bid, still, for the acceptance of responsibility he has reneged on, or Sidney Powell instead argues that he perjured himself. One way or another (or in both cases) Flynn lied. Repeatedly.

Notably, the government introduces its discussion of why Flynn’s past lies — which were false statements, not formally perjury — were so important using a SCOTUS discussion of perjury, something they didn’t do in his prior sentencing memo.

That is precisely why providing false statements to the government is a crime. As the Supreme Court has noted:

In this constitutional process of securing a witness’ testimony, perjury simply has no place whatsoever. Perjured testimony is an obvious and flagrant affront to the basic concepts of judicial proceedings. Effective restraints against this type of egregious offense are therefore imperative. The power of subpoena, broad as it is, and the power of contempt for refusing to answer, drastic as that is — and even the solemnity of the oath — cannot insure truthful answers. Hence, Congress has made the giving of false answers a criminal act punishable by severe penalties; in no other way can criminal conduct be flushed into the open where the law can deal with it.

Sidney Powell may be too rash to notice this (as she has missed or not given a shit about other similar warnings in the past). But the government is laying out a case to go after Flynn for perjury if he decides to get cute again.

The government recalls Judge Sullivan’s past disgust with Flynn

Having laid out two reasons why the outcome should be significantly different this time around than the outcome the government argued for in December 2018, they then remind Judge Sullivan how pissed off he was at that hearing (where he asked whether treason had been considered for Flynn), where it seemed clear he was already ready to send Flynn to prison.

The government reminds Judge Sullivan that he himself decided to let Flynn’s “cooperation” play out to see the true nature of it.

At the initial sentencing hearing in December 2018, the Court raised concerns about proceeding to sentencing without “fully understanding the true extent and nature” of the defendant’s assistance.


Although the government noted that “some of th[e] benefit” of the defendant’s assistance “may not be fully realized at th[at] time,” it proceeded to sentencing because it believed the defendant’s anticipated testimony in the Rafiekian case had been secured through his grand jury testimony and the Statement of Offense.8 The Court, however, expressed that “courts are reluctant to proceed to sentencing unless and until cooperation has been completed . . . [b]ecause the Court wants to be in a position to fully evaluate someone’s efforts to assist the government.” 12/18/2018 Hearing Tr. at 26. The Court’s concern that the parties had prematurely proceeded to sentencing was prescient.

It then reminds Judge Sullivan that he asked — and the government affirmed — that Flynn could have been charged in a conspiracy to act as an Agent of Turkey, one of the things that Sullivan found so disgusting in the last sentencing hearing.

The Court inquired whether the defendant could have been charged as a co-defendant in the Rafiekian case, and the government affirmed that the defendant could have been charged with various offenses in connection with his false statements in his FARA filings, consistent with his Statement of Offense.

The government next reminds Sullivan that Flynn’s actions were an abuse of public trust, another of the things that really pissed him off in the last sentencing hearing.

Public office is a public trust. The defendant made multiple, material and false statements and omissions, to several DOJ entities, while serving as the President’s National Security Advisor and a senior member of the Presidential Transition Team. As the government represented to the Court at the initial sentencing hearing, the defendant’s offense was serious. See Gov’t Sent’g Mem. at 2; 12/18/2018 Hearing Tr. at 32 (the Court explaining that “[t]his crime is very serious”).

The government returns to those themes to argue — factually but aggressively — that Flynn compromised national security.

The defendant’s conduct was more than just a series of lies; it was an abuse of trust. During the defendant’s pattern of criminal conduct, he was the National Security Advisor to the President of the United States, the former Director of the Defense Intelligence Agency, and a retired U.S. Army Lieutenant General. He held a security clearance with access to the government’s most sensitive information. The only reason the Russian Ambassador contacted the defendant about the sanctions is because the defendant was the incoming National Security Advisor, and thus would soon wield influence and control over the United States’ foreign policy. That is the same reason the defendant’s fledgling company was paid over $500,000 to work on issues for Turkey. The defendant monetized his power and influence over our government, and lied to mask it. When the FBI and DOJ needed information that only the defendant could provide, because of that power and influence, he denied them that information. And so an official tasked with protecting our national security, instead compromised it. [my emphasis]

Having laid out the reasons why Sullivan was ready to send Flynn to prison before he started all the Sidney Powell shenanigans, the government then repeats his past judgment that this is a unique case, and Flynn’s case is worse than all the directly relevant precedents, Papadopoulos, van der Zwaan, and, since the last sentencing hearing, Wolfe and Gates, who were sentenced to a range between two weeks and two months.

It goes without saying that this case is unique. See 12/18/2018 Hearing Tr. at 43 (Court noting that “[t]his case is in a category by itself”). Few courts have sentenced a high-ranking government official and former military general for making false statements. And the government is not aware of any case where such a high-ranking official failed to accept responsibility for his conduct, continued to lie to the government, and took steps to impair a criminal prosecution. Accordingly, while Section 3553(a)(6) requires the court to consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct,” there are no similarly situated defendants.

Although other persons investigated by the SCO pleaded guilty to lying to the FBI and were sentenced to varying terms of incarceration, those individuals and their conduct are easily distinguishable. See id. at 42-43 (“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.”). Alex van der Zwaan lied to the SCO, pled guilty to violating 18 U.S.C. § 1001, and was sentenced to 30 days incarceration and a fine of $20,000. See United States v. van der Zwaan, No. 18-cr-31 (ABJ). George Papadopoulos likewise lied to the SCO, pled guilty to violating 18 U.S.C. § 1001, and was sentenced to serve 14 days incarceration, to perform 200 hours of community service, and pay a fine of $9,500. See United States v. Papadopoulos, No. 17-cr-182 (RDM). Neither defendant was a high-ranking government official, held a position of trust vis-à-vis the United States, held a security clearance, had a special understanding of the impact of providing misleading information to investigators, or denied responsibility for his unlawful conduct.


The Court granted the government’s motion for a significant downward departure pursuant to Section 5K1.1 for providing substantial assistance, gave Gates credit for accepting responsibility, and still sentenced him to 45 days of confinement.

Effectively, then, the government uses Sullivan’s own past judgments, giving him all the reasons he would need to sentence Flynn, at least, near the top of guidelines range six months.

Subtly, the government twice invokes “aggravating factors” (once citing the Wolfe case, which I predicted would happen).

The defendant’s offense is serious, his characteristics and history present aggravating circumstances, and a sentence reflecting those factors is necessary to deter future criminal conduct.


The court concluded that Wolfe’s position—which was far less significant than the defendant’s position as National Security Advisor—was an aggravating factor to consider at sentencing, and one that distinguished his case from those of Papadopoulos and van der Zwaan. Moreover, in that case, the defendant received credit for accepting responsibility.

The government doesn’t ask Sullivan to go beyond a guidelines sentence of six months (though even six months would be almost unheard of), though the comparison to Wolfe makes it clear they think Flynn should serve more than two months in prison. But they give him all the ammunition he’d need if he wanted to go there on his own.

Ultimately, as the government notes, the guidelines range is the same. But the facts of the case are now very different.

52 replies
  1. Joseph Andrews says:

    As usual, first-rate reporting here that continues to impress–reporting that is found nowhere else.

    As I was reading…I had a thought:

    What has happened to Flynn’s son?

  2. Robert Britton says:

    Even if he gets six months, that’s hardly justice.

    Sorry. I’m so disgusted and disenfranchised about our entire system of “Justice”.

    A black guy gets caught buying a dime bag of weed, gets 10 years. A man steals $9, gets 30+ years in jail. A black woman votes improperly, 30+ years. As Sullivan questioned, why isn’t he being charged with treason, sedition, or frankly even conduct unbecoming an officer by the military.

    What a joke.

    It’s not just Flynn. It’s all the people who get “White Justice” and different treatment. How many companies settle without admitting any wrong doing, pay a small fee, keep all the illicit gains and are free to keep raking in the bucks.

    It’s also the joke about how our Judicial Branch plays politics. Roberts can say that there are no “Trump judges or Obama judges” but that’s just bullshit. Deep rooted partisanship, politics, and unethical influences the “justice system” in our country.

    I used to be so proud of our country. We are a mirage…an illusion of justice and democracy.

    The fraud, greed, hate, injustice, and pure immorality runs deep throughout our government’s branches.

    America used to make me proud. Now it disgusts me. This is not what I served in the Navy to protect and defend.

    Sorry for the diatribe. 6 months. What a joke for the damage he did to our country.

    • Barb D says:

      Amen! I still don’t understand why Flynn wasn’t charged with harsher crimes either. Does judge have to stick with max. of six months or could he choose to sentence him for longer?

      • Robert Britton says:

        IANAL, but I read that the judge COULD possibly take all crimes into consideration and sentence him to a longer than recommended 0-6 months.

        But I can’t see that happening. That would involve JUSTICE being done appropriate to the level of criminality, treason/sedition he did.

        Either way, Flynn likely goes to jail, then Trump will likely pardon him. Or maybe Russia will provide some polonium tea perhaps, or another “suicide” event will happen and more “missing video” will be the news, then Barr personally reviews the recordings and finds no crime.

        I wonder when all the pardons will be coming, for Manafort and others. I still wonder if he will issue blanket pardons for him, his family, et al. That will be yet another Constitutional crisis.

        Either way, more shame for our system of “justice”.

        • bmaz says:

          You have to be fucking kidding me. The reason is that Flynn pled to a single count of §1001 false statements. More than the sentencing guideline range for that would be outrageous with no prior convictions.

          Do Robert and Barb understand why there are federal sentencing guidelines? It was so that wildly disparate sentences were not meeted out out of emotion and vindictiveness to different defendants for the same offense.

          You seem to think this is some kind of lynch mob worthy thing, it is not. Whatever sentence Flynn will get will be within the appropriate guidelines. Justice is not what bullshit like these comments on a blog suggest, and that is not how courts should or do work.

          Seriously, take a chill pill. And Margo is correct, when you say that “treason” is in play, you just look stupid.

          • Rollo T says:

            Bmaz-you might be right about Flynn’s case, but Robert Britton raises some good points in his first comment about the rest of the justice system. I had a client get 4 years for stealing two laptops.

            • bmaz says:

              In federal court? That sucks, but bet it was a state court. Did the client have priors? Honest questions. Unless there were prior, or aggravating circumstances, that does sound ridiculous.

              I know there are serious inequities, and that the system, as a whole can and should be better. In federal court, the FPD’s and CJA panel attys generally do a very decent job. In state and local courts, it is not so good. And money makes a difference. Even a dedicated PD cannot expend the time and resources on a single case that a private attorney can.You can see it as early as middle of the night initial appearances. If I show up, my client is a lot more likely to get released than the dozens of others being represented by the warm body PD scrambling to keep up.

              There is absolutely no question that the weary judges also look at it and think “well this person has an expensive private lawyer down here, probably not as much of a risk”. I know they do, because I have known several of those judges and they say that. Is that “fair”? I don’t know, probably not, but in a way it is very understandable, the fact is somebody that has paid me or you to go do that probably is less of a risk.

          • paulpfixion says:

            He pled guilty to one false statement. But all lies are not equal. Some are white lies, some cover up for heinous crimes that endanger national security; some lies hide the fact that a person ate the last cookie in the jar, others obfuscate the connections between a presidential campaign and a foreign government. Flynn then lied to the court repeatedly and reneged on an agreement he had with the government to provide assistance with other investigations that related to foreign influence on an election. These actions warrant a serious punishment, punishment that would deter future criminals from taking the same course so as to avoid more serious charges.

            The above commenters merely are making the point that “justice” in the United States is a joke and that it is racially biased–I would personally add a class component to that as well. I read them as voicing their frustration about those realities, wherein the peons are drug tested just to get a job (disenfranchised for “felony” marijuana convictions) and the wealthy get away with literal rape and murder on a regular basis. I understand “treason” is a trigger word for one of the moderators on this site–for good reason. However, Sullivan used it in this very trial. Calling a commenter stupid for using a word that the Judge himself used and that the current President is misusing on a regular basis is over the line. You lose the high ground with ad-hominem attacks, attacks that seemingly are made with the intent of defending the US Federal judicial system because of “federal sentencing guidelines” or whatever. Explain “federal sentencing guidelines” to the black guy sitting in a basement of a precinct in Queens listening to his public defender explain how he should just take the deal because even though he didn’t do it it will be worse if they try to fight it as the dude has no money to fight with, and then lecture us about the fairness of justice in America.

            They are “guidelines” and not laws because they are not set in stone, because sometimes the consequences of an action are not consistent with the consequences of the same action in a different context, thus inherently changing the nature of the action itself (see Cookie Jars v. National Security or Drunk Driving v. Driving Drunk and Manslaughtering someone).

            I’m not in favor of the death penalty, but I would argue that The United States would be a better place if guys like Flynn, Ollie North, Libby, Cheney, etc were the ones getting lynched instead of the (many?) thousands of POC who have been strung up in a tree in this country. The commenters did not bring up the word “lynch,” the moderator did, as if mulling whether or not a General/NSA taking money from a foreign government for the purpose of materially affecting United States military deployment in areas of interest is or is not “treason” is the same as calling for said General’s lynching. That is the part that is bullshit. Misusing the word “lynch,” which refers to groups of white dudes riding around in masks murdering POC, is far worse than using a word that arguably applies to the given situation (see Emmet Sullivan, Donald Trump).

            “LOCK HER UP!”
            –Michael Flynn, important white dude

            • bmaz says:

              Thanks for your view of sentencing policy, even if it does not particularly resemble how things work in federal district courts. And how it differs from state courts. I am fairly aware of how the criminal justice system does, and does not, function. As you well know, I am that “moderator”. My name is bmaz, use it, don’t play cutesy.

              It is not that treason is a “trigger word”, it is that it is wrong to use it. And stupid. I may have been the first “moderator” here to point that out, but pretty much all understand and will give the same response. No, it is NOT okay because Emmet Sullivan, in a fit of understandable frustration, improperly blurted out the term. Even Judge Sullivan admitted he was wrong to have done so, and he was roundly criticized here immediately when he did.

              As to the postulate that “justice” in the United States is a joke”, that is the mark of somebody on a rant (sometimes justifiable!) that does not personally see or understand the justice system in the US. Is it perfect? Of course not. Is it perfect anywhere? Of course not. And every citizen’s view is different and tinted with their own experiences and knowledge. Not to mention that “justice” encompasses a lot more than the things we discuss here. For instance, it encompasses civil as well as criminal. Go spend a week in a courthouse. Go sit on a jury when called. As imperfect as it is, overall it mostly works. You never read about, and especially not here, the 99% of the cases where the “right thing” is the result.

              • paulpfixion says:

                Well, fair enough, bmaz. I’m an expat living in a country which operates under “rule by law” as opposed to rule of law. You’re right that the US system could be far worse. In many places we would not be able to even have the conversations that occur on this blog, or in our national discourse. I understand why you and the other moderators (who run the best politics site on the web) would like to emphasize the importance of maintaining the constitutional definition of “treason” and other terms or legal concepts–hopefully the media is reading the posts here, hopefully the views of the authors are helping to shape media discourse. I applaud the intelligence at work in this space, it keeps me returning, and learning.

                There are, of course, audiences other than the media and legal class, who frequent here–one being simple citizens who care and enjoy learning. There are those of us who experience words outside of a particular rigid definition, they change, all of them, and they change us, as context shifts through time. Take the word “moderate,” for example. Originally it meant “manager, ruler, director.” The sense of the verb moderate came later, as in arbiter or a person who keeps order in meetings. Perhaps you find it cute, but I was playing with the meaning of a word other than treason, as it also carries the senses of mitigate, restrain, modulate, temper.

                I am not very familiar with Robert Britton on here, I haven’t been reading the comments section studiously lately, so I’m not aware if the two of you have had past conversations. That said, I found it bridling to have another reader be called “stupid” for using a word in a way that, while not correct in a constitutional sense, is correct in the sense that a “traitor” is someone who betrays a friend or their country. Flynn lied to the FBI about his contact with the Russian ambassador. He then lied and obfuscated a lot more. He betrayed us–and continues to–we are still trying to unearth the ultimate reason why. Based on Trump’s view of the transactional nature of everything in life, it is fair to seriously question who they are working for. I’m not going to belabor the T word point further.

                But in that vein, I found it ironic that you misused the phrase “Lynch Mob” in the same metaphorical breath you used to attack a reader for being stupid. Who cares if “lynch” isn’t a legal term, it has deep and specific meanings in our country, meanings that go to the heart of what “justice” means and has meant. The civil rights movement exists because 160 years ago we had slaves. Because women only got the vote 100 years ago. The Justice system does fine work in America, sure. But is it just? I would love a citation for your claim that in “99% of the cases” the “‘right thing’ is the result.”

                • bmaz says:

                  We try to get things right, and I think almost always do, so we will stick with the actual legal definition of treason and call out misuse of it.

                  As to “lynch mob”, it is a colloquial term, not a defined legal one as “treason” is. From the Oxford Cambridge Dictionary:

                  1) a group of people who want to attack someone who they think has committed a serious crime.

                  2) a group of angry people who attack or try to destroy something or someone.

                  I have no qualms using the term in the context it was used. Agree that should be rare though.

          • Robert Britton says:

            I did not mention “lynching” or promote “some kind of lynch mob worthy thing”.

            I did not articulate reasons or comments regarding sentencing using “appropriate guidelines” from any legal standpoint. IANAL. I did not have the privilege of going to an Ivy League School. I’m just a stupid man with a piece of shit college degree from a chump SUNY school here in Buffalo.

            I made a personal, common sense articulation about the inequality and and disproportionality of “justice” being meted out to people who should be held accountable to a higher standards, but are routinely not, given their power, wealth, or political stature, as compared to the “justice” the everyday man receives.

            Your world view and mine are different. You obviously have a passion for our justice system and it’s “appropriate guidelines” and that “justice” is being done when those guidelines are being followed.

            As a “stupid” everyday man, I see our system as significantly and flagrantly stacked in favor of those with wealth, power, influence (including those of the right skin tone, socio-economic background.) I have 54 years on this planet, and while I was taught from childhood about how “justice is blind” and our Lady Justice has the scales representing a fair and balanced approach, my life experience has shown me numerous cases of *injustice* being done, much of which is systemic.

            Yes, as a stupid, everyday man, I view this world through a lens with an understanding that what is “just” under our law, and what is “right” morally, ethically, are not the same thing.

            There is *right* and *wrong* and yet there commonly is *injustice* far too often that benefits those with wealth, power, and influence and disproportionally hurts those from the lower of socio-economic strata within our Nation.

            And yes, as someone who takes my continued oath to “protect and defend” our *Constitution*, I take it very serious when specific offenders intentionally undermine our precious Country and Constitution, such as Flynn, and I get extremely angry when injustice is meted out to those who betrayed their oaths of office, their duty, and obligation to our Nation.

            As an “officer and a gentlemen”, and due to his significant position within the government, Michael Flynn should be held *MORE* accountable for his actions undermining the prior administration, the present Constitution and Nation, given his Oath both as a officer, and the import of his role during the time he served the present POTUS.

            He knew better (highly educated). He was obligated (oath of office, oath as an officer). He was trained and was fully aware of his choices and actions that he took that undermined our country and Constitution.

            Sorry for being “stupid” and having a layman’s, everyday sense of morals and ethics.

            I didn’t mean to personally offend you, or to some how violate this sanctum of judicial purity, reverence, and holiness.

            I had thought I was simply providing my own resulting views on what is taking place in the courts regarding Michael Flynn. It is a travesty, how he, Cohen, Manafort, et al, are being processed through our system of “justice”.

            it is a travesty that the Law and Constitution does not apply to Trump, Pence, and so many who blatantly lied, obfuscated, obstructed, or out right criminally undermined our Nation, and as it stands so far, the appropriate level of prosecution, indictments, and sentencing for these folks does not seem to be “appropriate” to this stupid man. The DOJ is poisoned at the TOP, and throughout, and so is the judiciary. I won’t say it’s a blanket corruption throughout, because there are folks like Amy Behrman Jackson and Emmet Sullivan and a few others at least seem to be TRYING to remain judicious in their findings. But there is significant cases of injustice being done throughout the judicial system that cannot be defended as being “fair” or balanced. The Scales of Justice have been out of balance for some time, and has only grown worse in recent years.

            How many bankers went to jail for the FRAUD they committed leading to the 2008 Financial Crisis? Zero. This is but one major example of our entire judicial system being compromised by those with power, wealth, and influence.

            My apologies for being ignorant and stupid, BMAZ. As a regular follower of this blog, and Marcy Wheeler on Twitter, I am well aware of what you folks do here, including familiarity of the smack down one can expect from particular fellow citizens here.

            I meant no personal offense to you, and while it is hard to not want to respond even harsher than I have, I stand by my views as an everyday American.

            Our justice system is significantly impaired, out of balance, and far too often, with growing regularity, justice is not being done.

        • dlk0606 says:

          In theory he could get the statutory maximum for a 1001 violation (5 years) but that would be a pretty extreme departure.

    • earlofhuntingdon says:

      To quote a great Paradise, MA, police chief, “I’m not in the right and wrong business. I’m in the legal and illegal business.”

  3. Margo Schulter says:

    As I suspect bmaz would be prepared to explain also, while Flynn may be guilty of many things, treason isn’t one of them as the one crime the Founders saw fit to define in the Constitution itself. The Treason Clause limits this offense, borrowing in part from an English statute enacted during the reign of Edward III in 1352, to levying war on the United States, or adhering to the enemies of the United States, giving them aid and comfort. Both parts of the definition require at least that an actual shooting war be in progress, whether declared or otherwise.

    The Founders, many of whom had themselves been in peril of a chage of treason from King George III, were well aware of how during previous centuries in England, concepts like “constructive treason” had been used to cast a very wide net — with the martyrdom of St. Thomas More as one famous example.

    Writing around 1628, Sir Edward Coke, one of the most influential expounders of the English law for the Founders, had praised the efforts of some of his predecessors over the centuries to limit the scope of treason so that “the fair Lilies and Roses of the Crown might flourish, and not be stained by severe and sanguinary Statutes.”

    The Founders were definitely committed that the new republic should incorporate Coke’s insights into the Constitution itself, and thus the Treason Clause.

    • P J Evans says:

      Considering some of the sentences that were handed down for that, it’s a good thing that the definition is limited – though I could wish that it was clearer what was intended by the guys that wrote that article..

    • Sproggit says:

      Thank you for this comment.

      I suspect that this observation may be unpopular, but when you write that the Treason clause of the Constitution requires that an actual shooting war be underway, would this be an example of the Constitution falling short because the Framers could not possibly have anticipated life in the 21st century?

      A cyberwar could be underway right this minute (it might well be, for all we know), in which not one bullet need be fired. It could be a war all the same, with casualties and harms to either side.

      • bmaz says:

        Maybe! But much of that comes from a very long, if not frequent, line of legal interpretations by the court. That said, it is crystal clear at this point. To my eye, appropriately so. Bandying “treason” about willy nilly as so many people desire is a horrendous idea.

        • Peterr says:


          And yet, Judge Sullivan himself raised it as a possible charge at Flynn’s initial sentencing hearing in a question to the government attorneys. That may have been a bit of anger/disgust at Flynn on his part, but I think Sullivan saw *something* in either open filings or classified filings that led him to consider that this might have been a possibly appropriate legal charge to consider looking at.

        • Ruthie says:

          The difficulty lies in the difference between the colloquial and the Constitutional understanding of “treason”. The distinction is critical, but for us non-lawyers, the stickiness of that colloquial definition can get in the way, especially as it’s such an emotionally charged topic. By that definition, many of the players in the 2016 Trump campaign could reasonably be described as treasonous. There are other descriptions one could use, but none fit quite as well.

          My husband, who only became a citizen a few years ago although he’s lived here for 30 years, refuses to stop using the term “treason” even though I’ve explained why it’s not accurate. He’s not buying it, and I don’t think he’s alone.

  4. Jenny says:

    Thanks Marcy. Insightful post.
    Of course Flim-Flam Flynn will get only 6 months or less. He is a white man, former Lt. General in the Army who chose greed, deception and lying attaching himself to the Grifter in Chief. Yep, actions and consequences go hand in hand.

    • bmaz says:

      This is complete bullshit. It is not a “white or black” thing, it is the sentencing guidelines. That is what the federal sentencing guidelines are for. This is not some common state level court.

      You have been around here a long time, and yet you still say something like this? Any “black man” with no prior convictions would get the same sentencing range on this particular charge.

        • bmaz says:

          It is certainly not perfectly consistent in federal court, but it is a hell of a lot better than in state and local courts. Also, too, it is really hard to equate disparate crimes. It doesn’t really work that way.

        • bmaz says:

          Good grief. You are going to cite me to Paul talking about drug crimes when we are talking about a simple §1001 plea? I guess you failed to take into account the “it is a single count of §1001 false statements” framing above. Lol.

          • Jenny says:

            LOL. “Good grief” Charlie Brown is right. Thanks for straightening me out. I was over my head. Heading to Lucy’s psychiatrist booth for some advice.

            • bmaz says:

              Everything is Lucy Van Pelt land now. Have you seen Susan Collins, Mitt Romney and John Bolton lately?

              • earlofhuntingdon says:

                Collins played McConnell beautifully, no matter that he and every homeless person in DC saw her schtick coming the length of a Cheney motorcade away. Pity that so many “journalists” cannot move beyond their editors’ reflexively polite benefit-of-the-doubt.

          • Cathy says:

            Oh dear. I see people reaching for words and concepts to distinguish between removing a bad actor from a position of power / authority to do future harm (such as impeachment?) and punishing a bad actor for doing harm (such as criminal sentence or civil penalty?). Given that a component of punishment can be deterrence against doing future harm, it’s easy for me to muck up the distinction. Especially when navigating through terms of art with a GPS dialed to general vocabulary. :-)

          • diggo says:

            I suspect the difference here is the reality of the actual charge versus the nefarious activities (perceived or otherwise) for which Flynn has not been charged. Al Capone etc etc.
            It would indeed be ludicrous to expect the law to be applied differently to Flynn, but it isn’t entirely irrational to want Flynn to be concurrently punished for being involved in Russia’s erosion of western democracies. But if we value democracy, we must value law above emotion.

            • bmaz says:

              Agreed. Flynn is also an unique case. I have no idea what Sullivan will do, but I expect he is not a happy camper as to Flynn and Powell’s histrionics. He can, theoretically, sentence up to five years, that is the max on the convicted charge.

              He can go above the guideline range of 0-6 months, but I highly doubt it. Also, keep in mind that, in federal court, a judge can consider under §1B1.3 of the guidelines other “relevant conduct”.

              Personally, I loathe Flynn, but think any sentence should be within the guidelines of 0-6 months. Probably between 1-3.

  5. pseudonymous in nc says:

    There’s an “in b4 pardon” mood to this memo, with the implication that if Flynn is to be pardoned while on the courthouse steps, there’s a political difference between doing it on the way in vs. on the way out. And I wouldn’t put it past Sidney Powell to object to a new allocution all the way to the sentencing hearing.

    (I know, the idea of political “damage” is meaningless right now. Who’ll remember it?)

  6. broux says:

    So, if he gets some time in jail, does this mean that he would loose his advantages as a former officer or that armed forces? Would he loose his grade of Lt. General in the Army? What about his pension?

    • bmaz says:

      No. That would need to have been specified in his plea or have to be done separately under the UCMJ. Neither is the case.

    • earlofhuntingdon says:

      No, no, and no. The conduct does not relate to Flynn’s prior military service.

      Avoiding collateral punishment is a major theme of American law. It is one reason why its definition of “treason” is so narrow and that punishments are personal, in that they are not meant to reach someone’s family or later generations, as could happen in English law.

      English kings imposed state punishment for personal offenses against them, because personal offenses were always deemed offenses against the state as a whole. (A monarchical situation Trump would like to import.)

      What each state considers treason illuminates what it values. In the US, its narrow definition of treason imposed limits and restraint on the state. In Switzerland, by contrast, state treason once included the disclosure of corporate and banking secrets. Go figure.

      • Peterr says:

        As Marcy points out, the government explicitly relates Flynn’s conduct at issue with his prior military service:

        The government returns to those themes to argue — factually but aggressively — that Flynn compromised national security.

        The defendant’s conduct was more than just a series of lies; it was an abuse of trust. During the defendant’s pattern of criminal conduct, he was the National Security Advisor to the President of the United States, the former Director of the Defense Intelligence Agency, and a retired U.S. Army Lieutenant General. He held a security clearance with access to the government’s most sensitive information. The only reason the Russian Ambassador contacted the defendant about the sanctions is because the defendant was the incoming National Security Advisor, and thus would soon wield influence and control over the United States’ foreign policy. That is the same reason the defendant’s fledgling company was paid over $500,000 to work on issues for Turkey. The defendant monetized his power and influence over our government, and lied to mask it. When the FBI and DOJ needed information that only the defendant could provide, because of that power and influence, he denied them that information. And so an official tasked with protecting our national security, instead compromised it. [my emphasis]

        Sullivan cannot strip a military officer of his/her rank – that belongs solely to the military legal system.

        Given how Trump slapped around the military over trying to hold a Navy SEAL accountable for illegal actions taken against a prisoner/prisoner’s corpse, including a pardon for the SEAL and accepting the resignation of the secretary of the Navy, I don’t think there will be much appetite to take up the process to demote Flynn.

        No, that’s not quite right. I think there will be plenty of appetite, but it will be weighed against Trump’s likely reaction. No matter how angry some of the DOD might be with Flynn over this (think of Sullivan’s reaction in that Dec hearing, and raise it a couple of powers), they’ll swallow hard as long as Trump sits in the White House.

        But when he leaves, who knows . . .

        • earlofhuntingdon says:

          The question was whether Flynn’s conduct as a political appointee in a civilian administration, even one that required prior military experience, would put in jeopardy his rank at retirement, benefits and pension.

          Based on what’s public, and absent treason or major felonies committed while on active duty, I don’t think those are at risk. That could change if he is prosecuted for other crimes, such as espionage.

          If I were Flynn, I would skip the old boy get togethers and learn to be happy on that pension. But it’s Flynn’s greed, high risk tolerance, and poor judgment that put him and his country in this bind in the first place.

    • Fran of the North says:

      Jail time reminds me of a Klingon proverb: Flynn-flan is a dish that tastes best served cold.

  7. joel fisher says:

    I continue to think that Flynn’s 12/18 sentencing memo should have said, “The defendant chooses to associate himself with the views expressed by the United States Attorney.” That being said, we must now remember that the noisy Sidney Powell has attempted, probably successfully, to move this case into the court of Trump with all her complaints of unfairness. A sentence from Judge Sullivan–really, any sentence–that she can whine about will result in a commutation of any jail time and fine. Trump will want to do it either right away (perhaps after bombing something) or after the election; but not in the few months before November. For this reason only, I’m hoping Sullivan gives him something at the low end of 0 to 6. It’ll be harder for Flynn to claim to be a martyr and, perhaps, harder to pardon.
    BTW, I’d be grateful for any light that might be shed on the impact of commutation/pardon on 5th Amendment privilege. My uneducated thought is that one retains the privilege after a commutation, but not after a pardon.

    • bmaz says:

      You are correct on all of this. Had Flynn done a short sentencing memo talking up his good points and seconding the government,, he likely would have walked out of court with no time and the whole thing over. And, yes, you have it right about commutation versus full pardon.

    • emptywheel says:

      Yes, that’s why Bush commuted Libby’s sentence rather than pardoning it. Because he lied to cover up that he had been ordered to leak Plame’s ID.

  8. Vicks says:

    Is there any indication that Ms Powell did more to help her client than to harm?
    One would think these people are trading their dignity for something of real value and I’m just not seeing it

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