Mike Flynn Seizes the Rope to Hang Himself With: Probation for Petraeus

The government and Mike Flynn submitted several motions today:

Eventually, I’ll hit them all in this post. But for now, I’m going to address just the government reply to Flynn’s sentencing memo, because I read it very very differently than virtually everyone who has read it.

A number of people are shocked by what seems to be the government’s deference to Mike Flynn in the memo, particularly their recommendation for a guidelines sentence — which might include probation. It’s true, the memo mentions probation over and over.

As set forth below, the government maintains that a sentence within the Guidelines range – to include a sentence of probation – would be appropriate and warranted in this case.


Here, the applicable Guidelines range already encompasses a potential penalty of probation and there is no lower possible penalty for the offense of conviction.


Based on all of the relevant facts and for the foregoing reasons, the government submits that a sentence within the Guidelines range of 0 to 6 months of incarceration is appropriate and warranted in this case, agrees with the defendant that a sentence of probation is a reasonable sentence and does not oppose the imposition of a sentence of probation.

The memo then goes on to nod to the issues Flynn raised. It acknowledges, then rebuts, Flynn’s complaints about what he claims is the government asking him to lie about FARA. But, the government notes, regardless of who is right, it wouldn’t change the guidelines sentence.

Importantly, regardless of whether or not the Court considers the defendant’s FARA false statements in fashioning its sentence, the applicable Guidelines range is still 0 to 6 months of incarceration.

It notes Flynn’s apparent backtracking on acknowledgement of responsibility. But, the government notes, regardless of who is right, it wouldn’t change the guidelines sentence.

But again, this makes no difference to the applicable Guidelines range – a two-level reduction in his base offense level would still result in a range of 0 to 6 months of incarceration.

Thus far, the government is doing precisely what it did in its own sentencing memo, emphasize that the government position has not changed. It asked for a guidelines sentence in December 2018, it asked for a guidelines sentence earlier this month, and it is recommending a guidelines sentence here. Anything outside those guidelines is Judge Emmet Sullivan’s decision.

Where the memo is absolutely fucking genius, though, is where it addresses Flynn’s emphasis that because he was a General forever, he should get probation. Every memo Flynn has submitted of late has basically argued that because he gave his life to the country, he should get special treatment.

As the government notes, in the very last words of their memo, that has happened in the past.

In terms of comparative sentences in cases involving arguably similarly-situated defendants, we note that there are several cases involving high-ranking government officials where probationary sentences were imposed. Former National Security Advisor Sandy Berger stole classified information from the National Archives, destroyed that information, and then lied to the government about his conduct. At the government’s recommendation, based in part on Berger’s cooperation with the government, he received a probationary sentence. See Gov’t Sent’g Mem. at 9, United States v. Berger, No. 05-mj-00175 (D.D.C. Sept 6. 2005) (Doc. 13); see also Factual Basis for Plea (D.D.C. Apr. 1, 2005) (Doc. 6). Likewise, after General David Petraeus pleaded guilty to the unauthorized retention and removal of classified documents, in violation of 18 U.S.C. § 1924, he received a probationary sentence. United States v. Petraeus, No. 15-cr-47 (W.D.N.C.). Here, the Court should consider these and other arguably analogous cases, along with all of the other relevant facts in this case, in fashioning a sentence that is “sufficient but not greater than necessary” to satisfy the statutory sentencing requirements under Title 18, United States Code, Section 3553(a).

Boy oh boy do these prosecutors look reasonable, huh, noting that powerful people sometimes get probation for things the little people go to prison for.

Except we know how Emmet Sullivan feels about Generals who think they should get special treatment because they’re high-ranking Generals, because he said so explicitly when Rob Kelner raised David Petraeus back in December 2018.

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 —


THE COURT: All right. Let me just say this. I probably shouldn’t. Having said that, I probably shouldn’t. I don’t agree with the Petraeus sentence. I’m sorry. I don’t see how a four-star general gives classified information to someone not authorized to receive it and then is allowed to plead to a misdemeanor, but I don’t know anything about it. Maybe there were extenuating circumstances. I don’t know. It’s none of my business, but it’s just my opinion.

And that has no impact — I would not take that into consideration in whatever sentence I impose here. Just based upon what I know about that case, I just disagreed with it. That’s all.

Yes, the prosecutors look totally docile in this memo. They’re disputing Flynn’s point, but ultimately they’re recommending the same thing they’ve always recommended, a guidelines sentence. They’re doing that because it inoculates them against any claim that their decision not to have Flynn testify affected his sentence, and they’re doing so to make clear that what Flynn is doing, in requesting to blow everything up, he’s doing even though the same guidelines sentence remains on the table. What comes next will be entirely his own fault.

And, yes, they mention probation, just like Flynn did. But in doing so, they almost certainly did so in a way that only exacerbates Sullivan’s innate disgust with powerful people who ask for special treatment.

74 replies
    • Twinkie defense says:

      Neither of those guys really flipped – Cohen refused to enter into a cooperation agreement and Manafort reneged on his cooperation agreement… the better comparable is Gates, who entered into a cooperation agreement, but unlike Flynn, stuck to it.

      • bmaz says:

        No, this is not right. Both did. Cohen did NOT “refuse to enter into a cooperation agreement”; in fact, he was desperate too, but not on the full and unconditional terms that SDNY wanted. Mueller was satisfied. Manafort did too, just did not do well in honoring it.

        • Twinkie defense says:

          Cohen “cooperated,” but he did not enter into a formal cooperation agreement that would get him a downward reduction in sentencing and which would have forced him to sit down with prosecutors and admit all of his other crimes and his family’s crimes. There’s no such thing as a “kinda” cooperation agreement. That’s why Cohen (like Parnas) is trying to do a one-sided partial cooperation still, in the hopes he might get some time shaved off his sentence retroactively. See for example: “Michael Cohen Wanted to Cooperate in His Own Way. Prosecutors Had Other Ideas” in NY Times.

          Manafort, like Flynn, entered into a cooperation agreement but then violated his agreement.

          Gates is getting off easy – he both entered into a real cooperation agreement, and lived up to its terms. That is the lesson for Flynn, who reneged on his agreement and is going to prison now as a result.

          • bmaz says:

            Ahem, I believe I have pointed this out, but thanks. And if you think the “Twinkie defense” is cute, go look up the Steinberg “sleepwalking defense”.

            • Frank Probst says:

              Not sure if you want to elaborate on it or not (probably not), but the for the non-LGBT folk out there, the “Twinkie defense” was a term created by the media to describe the legal defense of Dan White, who murdered San Francisco Mayor George Moscone and Supervisor Harvey Milk in 1978. White was ultimately found guilty of voluntary manslaughter instead of first degree murder, which ignited the White Night riots in San Francisco. Now-Senator Dianne Feinstein became Mayor of San Francisco after Moscone’s death.

              The “Twinkie defense” is also largely a myth. Despite the term, Twinkies were never actually mentioned during the trial, and the defense was NOT simply that White committed the killings because he ate sugary foods. What the defense argued was that eating sugary foods was an indicator of mental illness, and mental illness should have been a consideration by the jury during their deliberations.

              (I think it got it all right. Please feel free to correct me if there are errors in there. Wikipedia has articles about everyone mentioned above, if anyone wants more history of what happened.)

  1. Alan says:

    Thanks for the analysis and commentary. Please do new posts for the additional points–otherwise I might miss it! (Mike Flynn Seizes the Rope to Hang Himself With, Part II?)

  2. Frank Probst says:

    Does the government’s position make it less likely that there will be another half-dozen dueling memos, or is what they’re dong solely to head off an avenue of appeal?

    • Peterr says:

      I think Sullivan has had it with the sur-sur-replies to motions and filings, and he wants to be done with this. The timeline for the replies here are evidence of that, where he said to Flynn, “OK, you can file another reply but I’m not giving you more time to do so. Let’s get on with it.”

      And yes, by retaining the same sentencing recommendations the prosecutors are eliminating a possible avenue for appeal.

      • bmaz says:

        No, they did not. There were plenty of changed circumstances to warrant an updated sentencing recommendation. No appeal grounds have been eliminated whatsoever.

          • k says:

            Do they want to postpone the sentencing till after the election, knowing Trump won’t pardon Flynn before the election? Why did Flynn change his lawyers and cooperation agreement the way he did? He had a good deal.

            I don’t know why my name didn’t appear. Just upgraded to effing Catalina and it’s messing with my files.

            • bmaz says:

              Who are “they”?

              You know that sentencings do not just blithely get continued for a year, right? Even if this one has once already, but that basis is no longer present. Unless some rando holds a gun to Sullivan’s head, this will never be continued past the election.

              I know people have fever dreams and nightmares over this shit, but there actually is some regularity in how things happen in courts.

        • Peterr says:

          Not even “We object to the sentence because it was based on a sentencing recommendation that was revised upward out of spite”?

          ETA: From the post: “Thus far, the government is doing precisely what it did in its own sentencing memo, emphasize that the government position has not changed. It asked for a guidelines sentence in December 2018, it asked for a guidelines sentence earlier this month, and it is recommending a guidelines sentence here.” IOW, they *didn’t* update the sentencing recommendation, even as they took apart Flynn’s arguments.

          • bmaz says:

            No. If revised upward, that would have been based on complete bad faith failure to complete cooperation and, in fact, a deliberate tanking of the case he was still supposedly “cooperating” on. Those are perfectly appropriate grounds for revision of recommendation and element therefor.

            Keep in mind, the court does the sentencing, NOT DOJ. There would have been nothing inappropriate whatsoever in changing the recommendation.

            • Peterr says:

              I’m not saying they couldn’t or shouldn’t have legitimately done it – just that by NOT doing it, Flynn can’t object to the fact that they did.

      • joelafisher says:

        The only “appeal” that has any likelihood of success is the one Flynn is making to Trump. I think the guilty plea(s) are unassailable on a real appeal.

        • bmaz says:

          Correct. But the effect of pardon is much more complex than people think. A full pardon is a huge problem A lesser commutation leaves open other possible prosecutions. This is just not all that simple.

        • Twinkie defense says:

          Flynn gave up his right to appeal his sentence in his cooperation/plea agreement. Whatever sentence Flynn gets is totally up to the judge, and Flynn is stuck with it until and if he gets pardoned by Trump – which wouldn’t come before November at any rate.

  3. Peterr says:

    This brief just screams “We’re fine with the knot the defendant has tied around his neck, and are ready for the Court to open the trapdoor beneath his feet.” As you note, the Petraeus reference is the tell here. It’s a brilliant flip on the argument from Powell, given the excerpt you cite from the Dec 2018 hearing.

    Powell *still* doesn’t get that Sullivan’s anger at the prosecution over their conduct in US v Stevens is not a blanket anger at prosecutors in general, but an anger at those who most know the law for abusing it. Here, that principle implicates not the prosecution but Flynn, who as a Lt Gen, former head of the DIA, and National Security Advisor knows better than damn near anyone else about the laws around foreign agents, and the requirement not to lie your ass off when speaking with the FBI.

    But the prosecution knows this, and they are quite content to tee this up for Sullivan in the penultimate sentence of their brief, before closing with a final sentence that says (as they put it in the tee box on the golf course), “Your honor, Your Honor.”

  4. bmaz says:

    Yeah, I dunno, don’t think there is any dimensional chess by DOJ here; they almost inexplicably pulled a ton of punches. They could have, and should have, taken at least a couple of shots. “This” is what they had to work so hard and overtime on? Really?

    • Peterr says:

      The Petraeus line at the end is definitely a shiv between Flynn’s ribs. In the movies, this would be the knife that slides in so neatly that the guy falls over with a look of surprise, because he didn’t even see it coming or feel it going in.

      • P J Evans says:

        Or the sword slash that cuts the guy in half, and he doesn’t know it until he falls apart. (I don’t think it’s a real-life thing.)

    • I Never Lie and am Always Right says:

      The version of the government’s memo that was filed may not bear much resemblance to the first or second drafts of that memo. Decisions had to be made on what to say and what not to say. That can take time. There can be huge fights, er, I mean “discussions”, within the government on what positions to take in a pleading, whether to appeal a particular case, etc. I was involved in any number of those “discussions” years ago, so I understand how brutal and time consuming those discussions can be at times. To this day I sow seeds during my trials that may bear fruit when it comes time for the government to decide whether to appeal an adverse decision, based on what I learned during those “discussions” years ago.

      As for whether the prosecutors should have taken a couple shots, I think it is close question.

      • bmaz says:

        Fair, but only if too many levels are involved. If it is really left in the hands of the trial attorneys, it is pretty easy.

        Do you still allow acceptance of responsibility, yes or no? Do you still allow “cooperation”, yes or no? Based on the answers to those two questions, what is your recommendation?

        This is not hard for the trial attorneys, but when the upper levels get involved, then it is. But I have never been a prosecutor, though having dealt with and respecting many. So, I may not be a truly neutral observer.

    • Twinkie defense says:

      My interpretation is that Barr tied their hands regarding the basic outlines of their sentencing recommendation – 0-6 months – but prosecutors are using the narrative of their sentencing memo to give license to Sullivan to ignore their recommendation.

    • emptywheel says:

      FWIW, the brief they had to work overtime on was the one that was much harsher. So if that’s the one Barr had to approve, he already approved the decisions that will let Emmet sentence more aggressively. And they explicitly say in this one that they’ll deal with Flynn’s complaints related to withdrawal in their response to that one. THAT ONE I expect to be scathing.

  5. joelafisher says:

    With this memo, the White House will be less able (not unable) to argue that overly aggressive Federal prosecutors pushed for an extreme punishment. Trump doesn’t need it, but I’m sure he’d like just a little bit of prosecution passion (Bias, sad!) so he’ll have an excuse for clemency. This will rev up his base going into November. He’ll be available for the Summer and Fall fall rally season; maybe even featured at the convention. I can see it now: Trump will introduce the General so the howling droolers can have a cheerleader for their “lock her up” chant.

        • bmaz says:

          Well, he might. We shall see. Flynn better hope Trump gets reelected though, else his little safety valve loses a LOT of its steam.

          • Twinkie defense says:

            I bet once the November election comes and goes, win or lose Trump will start pardoning like crazy – Flynn, Stone, Manafort, himself, his family – what’s to stop him?

            So given Flynn’s short potential sentence, gotta lock him up ASAP.

            • bmaz says:

              What is to stop him?? We have repeatedly discussed that here. Pardons create real problems. Commutations, much less.

              • Twinkie defense says:

                The only thing to stop Trump from pardoning (or commuting) Flynn – which he could do already instead of making Flynn dangle – is political backlash. Especially during an impeachment trial for abuse of office. Exhibit A: Paul Manafort. Manafort has been rotting in prison for some time. Why not get him out?

                Trump does what’s best for Trump, period. If it were good for Trump to get these guys off now he would have done it already.

                • bmaz says:

                  That is simply not correct. There is a difference in what posture a possible witness against Trump in the future may be in. It is absolutely not just “political backlash”.

              • Twinkie defense says:

                Just to be clear, my point is not about pardon vs. commutation – either gets these guys out of jail and either comes with political backlash. My point is Trump is not pardoning or commuting any of his co-conspirators until after the election, and then EVERYONE is getting off, including Trump, Ivanka, Jared, Eric, and Don Jr.

  6. orionATL says:

    my reading is that what ew has made clear for us to appreciate is standard calculated human psychology – sharp folks use it all the time.

    the involved prosecutors do not need to, and would look bad if they, call for flyn’s head now.

    they did their job months-to-years ago. they made a bargain with flynn in good faith; that “good faith” part is very important now. their job is done except to very clearly remind all involved of the history of the case in detail.

    if there is any deviation in sentencing now, the doj folks understand that needs to be entirely in the judge’s hands, with there being no sense that they egged him on.

    we will see what judge sullivan does next.

    i would not want to be in lt. general flynn’s, uh shall we say, “slippers” right now.

  7. Reader 21 says:

    Another thought-provoking piece—thank you EW!

    I woke with a nagging thought though—isn’t another way to read this, is if Sullivan goes beyond what’s called for, in even the DoJ submission—he’s kind of on an island? Ie., the evidentiary record wouldn’t support being harsh on Flynn? Then, even if he does, he looks (potentially) capricious, thus bolstering the case for a pardon? Just wondering.

  8. PeeJ says:

    Correct me if I’m wrong, but I don’t remember Berger or Petraeus looking to profit off their indiscretions. Flynn is different in that his goal was to get rich while betraying his country. Berger and Petaeus did it for love. To quote another great American, “Lock him up”!

    • bmaz says:

      That depends on what you deem “profit” to mean. Petraeus was absolutely bucking up his paramour who was writing a book she would putatively profit on. So that may be a dubious analogy.

      As to Berger, that is a closer call. He was looking, and seeking to extricate, support for his testimony to Congress. But that was part of his reputation maintenance, which was valuable to him.

      “Profit” and “value” have different meanings to different people.

  9. red says:

    I can’t shake the fact that the Judge used the T word and gestured to the flag very early on in the trail. Yes, he walked it back… but I can’t imagine the the underlying facts that triggered that emotional response will have just vanished.

    Add to that the little reindeer games that his new counsel is playing… I don’t see this going well for him.

    Do we have a sentencing date?

  10. Ed P says:

    Huge fan of your work, Marcy! Keep it up.

    But I think you are missing the larger picture here. It appears to me Flynn’s strategy is to provide cover for a pardon. The plea reversal is designed to be rejected by Sullivan and to get Flynn sentenced as stiffly as possible. Then Flynn and Trump can complain how unfairly Flynn was treated, justifying a pardon.

    I just hope Sullivan sees through this ruse and allows for the plea agreement to be torn up…so Flynn can face a trial in the middle of campaign season for all his misconduct, including the FARA and whatever else he plea bargained out of.

    [Welcome to emptywheel. Please use a more differentiated username when you comment next as we have several community members named “Ed” including one of our contributors. Thanks. (Update 29-NOV-2021: username changed from “Ed” to “Ed_TBD-01” on temporary basis until a differentiated alternative has been selected by this commenter.|Update 29-NOV-2021 10:57: username now “Ed P” with all previous comments edited to reflect this change.) /~Rayne]

    • Reader 21 says:

      That was my read as well, Ed—you just stated it better than I did! Maybe I’m too cynical but seemed to be teeing things up for a pardon as well, have Individual-1 whine about the “unfair judge” etc. I hadn’t considered the new trial aspect of it though—however much I’d love that, would this DoJ under its current leadership have the appetite for that? I don’t know.

      • bmaz says:

        Why do you or anybody thinks “pardons” are a magical elixir for Trump?

        Why do you think a “new trial” is even worth mentioning?

        Why would you “love that”?

        What is it about the sanctity of a plea agreement and (multiple) allocutions, especially under a sworn record, as was the case with Flynn, that you think can be so blithely set aside because some noisy jackass from Fox News interjects herself?

        I’ll be waiting. And, you know, no big deal. It is just that if Flynn and Powell can be normalized and get away with this bunk that, to be kind, makes the word “bogus” seem light years beyond kind, then the entire criminal justice system and sanctity of pleas, comes to a halt.

        So, “Reader 21” how much would you really “love” for a “new trial”? Enough to screw the entire practice of criminal law and system of plea bargaining?

        How far are you willing to go?

    • earlofhuntingdon says:

      Since when does Trump need a rational basis for his conduct? He has invented the reality he needs since grade school. He would happily invent any “cover” he needs relating to his commutation of any Flynn sentence.

      Trump’s most outrageous pardons have been to create precedent for covering his own ass. They are for people whose conduct is unrelated to Trump, whose pardon can do him no harm.

      As limited as he is, Trump is sentient enough to know that pardoning Flynn or others intimately involved in his crimes would not serve Trump. It would increase his jeopardy.

  11. Reader 21 says:

    @red — that is my recollection as well, I’d have to take another look but I thought you were just repeating the judge’s words, verbatim, I’ll try to take another look later—but let’s not forget—the good judge has seen ALL the information, not all of which we have been privy to.

    • bmaz says:

      Oh, that is great. Take “another look” at asinine crap. Pay no attention to actual law.

      And then try to justify said asinine discussion by the thought that it “might” be based on “not all of which we have been privy to.”

      Please stop this nonsense.

      • P J Evans says:

        IIRC, this was in previous posts on Flynn: the judge did use the T-word and he has seen classified material in this case.

        • earlofhfuntingdon says:

          Then let’s not compound the fault by repeating the use of the T-word where it doesn’t belong.

        • bmaz says:

          Yeah? Who was it Flynn was dealing with that we are actually at war with?

          Russia? Nope
          Ukraine? Nope
          Turkey? Nope

          Who is it? And I do not give a flying fuck what Sullivan mistakenly said. He was wrong to have done so, and admitted as much.

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