Michael Flynn should thank Judge Sullivan for postponing his sentencing: Today's talker

U.S. District Judge Emmet Sullivan has agreed to delay sentencing former national security adviser Michael Flynn's so Flynn can continue cooperating with the Russia investigation.

Flynn got a good deal

By Conor Shaw and Jennifer Ahearn

U.S. District Court Judge Emmet Sullivan's decision on Tuesday to postpone the sentencing of Michael Flynn, President Donald Trump’s former national security adviser, may have been a surprise, but it was not an improper exercise of judicial power as some have claimed. To the contrary, Sullivan's actions were a good reminder that it is judges, not prosecutors, who are charged with fashioning just sentences in the federal system.

In advance of the hearing, prosecutors for the special counsel and Flynn's attorneys had taken the position that Flynn's substantial assistance in ongoing criminal investigations merited a sentence "at the low end of the guideline range — including a sentence that does not impose a term of incarceration."

But it was not to be so. During several dramatic exchanges with Flynn, his lawyers and prosecutors, Sullivan made clear that he was disgusted by Flynn's conduct, that he was troubled by Flynn's attorneys' attempts to minimize aspects of Flynn’s conduct, and that he would likely impose an incarceration sentence if he proceeded to sentencing. Flynn and his attorneys, having taken the hint, asked that sentencing be postponed at least until March so that Flynn can get the benefit of any additional cooperation he provides to the government.

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For those unfamiliar with federal sentencing, this result might seem odd, but in the federal system, judges are responsible for much more than ratifying a sentence that is mutually agreeable (or deciding on an appropriate sentence when it is in dispute). Judges are charged with imposing a sentence that is "sufficient, but not greater than necessary" to reflect four primary purposes of sentencing: retribution, deterrence, incapacitation and rehabilitation. In this case, Sullivan seemed far from convinced that a sentence of probation and community service was sufficient to punish Flynn for lying to FBI agents about his contacts with the Russian ambassador.

Sullivan also rightly pointed out that Flynn has been implicated in federal crimes beyond the single false statement charge to which he pleaded guilty; two of Flynn's business partners were indicted earlier this week for conspiring to violate federal lobbying rules in conjunction with work they performed for the Turkish government. Whether those concerns are fully offset by the cooperation that Flynn provided to the government in other cases is a judgment call — and is the type of judgment call that federal judges take seriously.

Yes, Sullivan might have gone too far by suggesting that Flynn's actions were tantamount to treason, but it would certainly not have been an overstatement to say they reflected divided loyalties. Flynn's conduct was incredibly serious and presented a national security risk. As the national security adviser and the former head of the Defense Intelligence Agency, his lies were no small mistake — and he, more than most, should have known it.

Conor Shaw is a legal counsel (@ConorMarcusShaw) and Jennifer Ahearn is a policy director for Citizens for Ethics in Washington (CREW).

What our readers are saying

President Donald Trump hired "the best" even after Barack Obama warned him not to hire Michael Flynn.

— John Karabatos

Are we seeking justice or a conviction? A plea deal can be interpreted as coerced testimony. It's not justice.

Special counsel Robert Mueller's investigation is politically motivated. They have not touched Trump after almost two years of investigation. He paid off porn star Stormy Daniels? We have spent almost $20 million to find out what we already knew.

— Steven Arnold

As it has been said many times, it all starts at the top. U.S. District Judge Emmet Sullivan ponders why the prosecution didn't charge Flynn with treason, given what he has admitted to doing. But Flynn didn't do anything without a nod from Trump, conceivably.

Sullivan said Flynn sold out his country. If that is true, then what do we say about the guy Flynn was working for?

— John David King

I'm glad Sullivan was disgusted. He was absolutely correct; Flynn did essentially sell out on our country.

— Kajsa Williams

What others are saying

The Wall Street Journal, editorial: "(Michael) Flynn had no incentive to lie to the FBI agents who interviewed him in January 2017 about his contact with the Russian ambassador to the U.S. Those talks were legal and normal for a new national security adviser. Government documents related to the Flynn sentencing suggest that the FBI lured the former general into a meeting without a lawyer, never making clear that Mr. Flynn was himself under criminal investigation. ... FBI agents, prosecutors and judges wield awesome power that can destroy families and careers. They have to be held to account as much as unpopular presidents."

Jennifer Rubin, The Washington Post: "Flynn is no babe in the woods here. Somehow he decided he could secretly represent a foreign government while advising a presidential nominee and getting classified briefings — and even after he was named national security adviser. Along with all of this, he decided to lie about when confronted with evidence. ... One can logically infer that he knew a lot about Donald Trump’s conduct during and after the presidential campaign — enough to compel Trump to ask then-FBI Director James B. Comey to go easy on him."

Michael J. Stern, USA TODAY: "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."

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