Michael Flynn sentencing lesson: To stay out of prison, don't blame FBI for your crimes

Michael J. Stern
By blaming the FBI for his own lying, Flynn annoyed the judge and fueled the Trump narrative that you can't trust Mueller, law enforcement or the courts.

When you are a military veteran of 33 years, have served combat duty and worked at the highest level of national security intelligence, playing a damsel in distress is not going to work out well for you.

Disgraced former national security adviser Michael Flynn learned this the hard way Tuesday when his sentencing for lying to the FBI was delayed. His attorney made the request after the judge signaled Flynn might be going to jail.

Flynn pleaded guilty in December 2017 to lying to the FBI. Flynn told the FBI he did not discuss sanctions against Russia with the Russian ambassador during the Trump transition in 2016. An intercepted telephone call between Flynn and the Russian ambassador proved that was a lie.

The deal struck between special counsel Robert Mueller and Flynn called for Flynn’s cooperation in the investigation and prosecution of others who may also be involved in criminal activities. By all accounts, Flynn satisfied his end of the bargain. Mueller said as much when he filed his sentencing memorandum earlier this month. Mueller’s memo included the two words every defendant wants to hear: “substantial assistance.”

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Based on Flynn’s “substantial assistance,” which included 19 interviews with the special counsel, Mueller recommended “a sentence that does not impose a term of incarceration.” With that one line from Mueller, all Flynn needed to do was keep his head down, file a contrite sentencing memo acknowledging his mistakes, point his finger back to the prosecutor’s request for a “no jail” sentence and say, “Please judge, follow the prosecutor’s recommendation.”

That’s not what Michael Flynn did. Instead, Flynn filed his own sentencing memo and that’s where things went wrong. Very wrong. Instead of filing a memo that stuck with the tried and true blueprint for a sentence of probation, Flynn chose to gild the lily. Either through his own bad judgment or his attorney's, Flynn’s sentencing memo attempted to paint Flynn as a victim who was tricked into lying by an unscrupulous FBI.

Flynn’s primary contention was that he was not warned that lying to the FBI was a crime. He implied that if the FBI had warned him not to lie, he would have told the truth. Flynn’s back-pedaling did not sit well with Mueller. He noted in his own memo that Flynn had lied about his communication with the Russian ambassador weeks before his FBI interview.

Flynn's blame shifting drew judge's outrage 

According to Mueller, Flynn’s lies to the FBI were simply a continuation of the same lies he’d made to the incoming vice president, chief of staff and press secretary. Mueller wrapped-up his rebuke by noting that “a sitting National Security Advisor, former head of an intelligence agency, retired Lieutenant General, and 33-year veteran of the armed forces knows he should not lie to federal agents.”

Mr. Flynn’s effort at shifting the blame for his own crimes to FBI agents may have been a hit with President Donald Trump, who publicly wished Flynn “good luck” shortly before sentencing. But Judge Emmet Sullivan, less than impressed, ripped into Flynn about his waffling sentencing memo.

Flynn fully acknowledged his guilt in the confrontation with the court, but his problems escalated as sentencing wore on. Sullivan’s use of the words disdain, disgust and "treason," and his admonition that "Arguably, you sold your country out,” made clear things were not looking good for Flynn. When the judge hinted he was considering a sentence of imprisonment, Flynn took him up on an offer to delay sentencing.

As a prosecutor who handled hundreds of cooperation deals like Flynn’s, I don’t doubt the sincerity of the judge’s outrage over the nature of Flynn’s criminal conduct. It  includes not only lying to the FBI but also the more serious uncharged crime of trying to secretly influence American politics by acting as an unregistered agent of the Turkish government.  

Still, Flynn’s low sentencing guidelines and Mueller's recommendation of no prison time should have made the sentencing a smooth ride home. It was Flynn’s decision to shed responsibility that got under Judge Sullivan’s skin. Compounding Flynn’s error, his misstep fed into the Trump administration’s public narrative that Mueller’s investigation is a “witch hunt” and that law enforcement, the rule of law and the courts are not to be trusted.

Other Mueller defendants can learn from Flynn

The judge delayed the sentencing with the understanding that Flynn may help his circumstance by continuing to cooperate. But if Mueller wanted to ensure Flynn’s continued cooperation, he would not have agreed to set a sentencing date in the first place. The carrot is rarely handed over before the work is done.

There are a few possibilities as to how this can play out to completion. The most likely is that Flynn will go home tonight and count his lucky stars, in much the way most of us do when a speeding car grazes our arm as we cross the street while texting. Flynn will bend over backwards for the next 90 days, doing anything he can to continue cooperating. His counsel will file a supplemental sentencing memo in which Flynn falls on his sword multiple times in an effort to make clear he is not blaming anyone but himself for his crimes. And finally, Mueller will file a short memo acknowledging Flynn’s continued cooperation and acceptance of responsibility, and then reiterate the government’s request for no prison time.

If they all stick to the plan, it is likely Flynn can work his way back to where he was before filing his disastrous sentencing papers.

There is a lesson here to be learned by the other Mueller defendants, who may find themselves in a circumstance similar to Michael Flynn’s come sentencing time: When a hummingbird lands in your hands, express your gratitude with silence, not applause.

Michael J. Stern was a federal prosecutor with the Department of Justice, for 25 years, in Detroit and Los Angeles.

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This article originally appeared on USA TODAY: Michael Flynn sentencing lesson: To stay out of prison, don't blame FBI for your crimes