On talk radio, I’ve heard for the past week or so (and therefore repeated in unison verbatim by conservatives), about how Flynn was victimized, deceived, and entrapped by the FBI.
Here’s how that was perceived in real life. Keep playing the victim card, Trump supporters - see how that works out for you in the near future.
Former National Security Advisor Michael Flynn on Tuesday got an unpleasant lesson on the difference between politically effective arguments and legally astute ones. Backed by an array of well-wishers including President Trump, and buoyed by widespread conservative arguments that the FBI had violated his rights, Flynn walked into a federal courtroom in Washington hoping for the probationary sentence that Special Counsel Robert Mueller had recommended. Instead he was threatened with jail by a furious United States District Judge Emmet Sullivan, who accused him of selling America out and forced him to retreat from his evasions. Flynn’s lawyers hastily agreed to delay the sentencing until March 2019 so that he might strive to cooperate further with the Special Counsel and perhaps work off the custodial sentence that Sullivan was clearly contemplating.
This may have been a shock to Flynn, but it was predictable to everyone who understands that federal court is neither Twitter nor a cable news show.
Flynn and his lawyers faced the same problem that has bedeviled Trump and Michael Cohen and Michael Avenatti and Paul Manafort and several other figures in this circus we call life after 2016: a muscular public relations strategy is often a terrible litigation strategy. Time and again, these players have heard their public statements quoted back at them in court to undermine their legal positions. But Flynn’s error was even more grievous – he incorporated media spin into a sentencing brief.
Flynn’s lawyers argued in his brief that the FBI wronged him: wronged him by discouraging him from having an attorney present during his interview, by failing to warn him that false statements during the interview would be a crime, and by not telling him that his answers were inconsistent with their evidence so that he could correct himself. The Flynn-as-Deep-State-victim narrative was pleasing to Trump partisans and Mueller foes, but suicidally provocative to a federal judge at sentencing.
Federal judges demand sincere acceptance of responsibility from people pleading guilty, especially when they’re cooperating with the government, and especially when they’re asking for a lenient sentence. Flynn’s sentencing arguments effectively told Sullivan that Flynn saw himself as a victim, rather than a contrite wrongdoer. Sullivan seized ominously on that issue from the start of the hearing, interrogating Flynn’s attorneys about how their argument could be consistent with acceptance of responsibility. Eventually he forced Flynn and his attorneys to concede that they were not arguing that Flynn was entrapped or that his rights were violated, and made Flynn repeat several times that he had pled guilty because he was, in fact, guilty. Flynn was surprised, but criminal defense attorneys weren’t: That’s what happens when you deflect blame at your own sentencing.
Sullivan’s anger was palpable. He openly expressed what he termed “disgust” for Flynn’s actions and asserted “arguably, you sold your country out.” He noted that Flynn lied both to the FBI and to members of the Trump administration. In an intemperate moment for which he later apologized, he asked if Flynn had committed treason. Flynn had not — nobody thought he had — but it’s a bad sign when your judge used the T-word at your false statements sentencing hearing. If Flynn’s lawyers had not agreed to postpone the sentencing, it’s probable Sullivan would have given him time in jail.
For a year online conspiracy theorists and marginal publications have argued that Sullivan would dismiss the case because the government failed to turn over exculpatory material, or because his interview was conducted incorrectly. Since Flynn filed his sentencing brief, more mainstream outlets – including Fox News and the Wall Street Journal’s editorial page – have taken up the cause, proclaiming that the FBI broke the law in its interview. Those arguments are, and have always been, errant nonsense, as any legal professional should know. Could it be that Flynn and his lawyers included the disastrous Flynn-as-victim pitch in their brief because they came to accept the partisan din – because they forgot that federal judges don’t react like people on Twitter? That would be a very 2018 way to go to federal prison.
[Edited on 12/19/2018 by BoytonBrother]
