Legal Issues
Michael Flynn’s sentencing set for Jan. 28 after judge rejects his attacks on the FBI, Justice Department
President Trump, former FBI director James B. Comey and former national security adviser Michael Flynn's stories are entangled, to say the least. (Meg Kelly/The Washington Post)
By Spencer S. Hsu and Carol D. Leonnig
December 16 at 11:41 AM PT
A federal judge on Monday rejected Michael Flynn’s attacks against the FBI and the Justice Department, setting a long-delayed sentencing for President Trump’s former national security adviser for Jan. 28.
U.S. District Judge Emmet G. Sullivan of Washington, D.C. dismissed Flynn’s motion to find prosecutors in contempt. In a 92-page decision, Sullivan ruled there was no basis for Flynn’s allegations that federal law enforcement officials entrapped the retired three-star Army general into accepting a plea deal and that special counsel Robert S. Mueller III’s prosecutors had not wrongfully held back 50 requests for evidence from Flynn’s attorneys.
Flynn, who pleaded guilty to lying to investigators about his interactions with Russia’s ambassador after the 2016 U.S. election, had been set to be sentenced Dec. 18. Sullivan this month delayed the sentencing pending a report by a Justice Department inspector general on how the FBI handled the Russia investigation, which reviewed topics related to Flynn’s allegations.
The report from Justice Department Inspector General Michael Horowitz released last week found that the FBI was justified in opening its 2016 probe into possible coordination between Russia and four members of the Trump campaign, including Flynn. But the report also found the FBI made significant errors or omissions in applying for intelligence surveillance warrants for one of them, former campaign adviser Carter Page.
Sullivan reviewed Flynn’s more detailed accusations that misconduct by the FBI, Justice Department and Mueller’s office raised ethical concerns and cast doubt on his investigation, but denied defense claims that they warranted tossing out his plea in favor of a trial or dismissal of his case. Similar to Horowitz’s findings, the court ruling undercut arguments that the FBI investigation or Justice Department prosecution of Flynn was unjustified or improperly handled.
Refuting Flynn’s claims that he was misled into unwittingly plead guilty to charges, Sullivan wrote that it was undisputed that Flynn told the same lies to the FBI, Vice President Pence, and senior White House officials, who repeated them to the American public, leading to his firing in Feb. 2017.
National Security Adviser Michael Flynn speaks in the James S. Brady Press Briefing Room during a daily news briefing at the White House in 2017. (Jabin Botsford/The Washington Post)
“The sworn statements of Mr. Flynn and his former counsel belie his new claims of innocence and his new assertions that he was pressured into pleading guilty to making materially false statements to the FBI,” Sullivan wrote.
The judge also denied Flynn’s demands for greater disclosure, saying he “fails to explain how most of the requested information that the government has not already provided to him is relevant and material to his underlying offense — willfully and knowingly making materially false statements and omissions to the FBI … or to his sentencing.”
Sullivan, the longest-serving active federal judge on the U.S. District Court in Washington and a judicial appointee of presidents of both parties, enjoys a nationwide reputation for championing defendants rights under the so-called Brady rule, which established the government's obligation to turn over evidence that can be useful for the defense.
In Flynn’s case, however, Sullivan eviscerated defense claims that the government failed to meet its duties, writing that the court “concludes that Mr. Flynn has failed to establish a single Brady violation.”
Sullivan issued his ruling after written arguments by both sides — but without hearing oral arguments — suggesting his dim view of Flynn’s legal case.
The judge also scolded Flynn attorney Sidney Powell for purportedly “lifting” whole cloth a piece of a Supreme Court decision in her brief, suggesting the lawyer had plagiarized in a potential violation of legal ethics rules. Powell could not be immediately reached for comment.
Flynn could still move to withdraw his guilty plea and face a potential trial, or appeal a conviction, but faces a tougher legal path ahead to avoid a potential prison term at sentencing.
Flynn, 60, pleaded guilty Dec. 1, 2017, to lying to the FBI about contacts with then-Russian Ambassador Sergey Kislyak, becoming one of the first Trump associates to cooperate and the highest-ranking official charged in Mueller’s investigation of Russian interference in the 2016 presidential election.
Flynn had admitted he lied about conversations with the ambassador about U.S. sanctions and acknowledged he misrepresented work he had done on behalf of the Turkish government in filings to the Justice Department. Flynn later assisted prosecutors with multiple investigations, including Mueller’s.
Prosecutors have said Flynn has finished his cooperation. But after prosecutors described Flynn as a model cooperator and both sides asked a judge for a sentence of probation, Flynn alleged in August that prosecutors withheld classified information and other evidence that his attorneys assert should lead to the dismissal of his entire prosecution.
Flynn earlier this year fired the defense team that negotiated his plea, and his new defense team, led by Powell, asserts that the Justice Department coerced a plea.
[[Read the defense team filing for Michael Flynn here]]
Flynn’s current lawyers accused elements of the FBI, CIA and Pentagon of trying “to smear him as an ‘agent of Russia,’ ” leaking information regarding classified intercepts of his calls with Kislyak or engaging in other “malevolent conduct.”
In Justice Department filings, Assistant U.S. Attorney Brandon L. Van Grack blasted Flynn’s allegations of prosecutorial misconduct as an unfounded effort to conduct a “fishing expedition” for documents that either do not exist or have no bearing on the conduct to which he pleaded guilty, and for relying on conspiracy theories to deny Mueller’s central finding of Russian interference in the 2016 U.S. election.
Van Grack had said the defense was using the pretext of a search for exonerating evidence to wriggle out of his guilty plea and repeated sworn admissions of misconduct.
[[U.S. prosecutors say Michael Flynn is using ‘conspiracy theories’ in stealth bid to dismiss case]]
Van Grack said the government had turned over 22,000 pages of documents before Flynn’s plea and “is not aware of any information that would be favorable and material to the defendant at sentencing.”
Sullivan has in the past heatedly rejected suggestions that Flynn might have been duped into lying to the FBI about his conversations with Kislyak.
“Arguably, you sold your country out,” Sullivan told Flynn during Flynn’s initially scheduled sentencing hearing, held last Dec. 18, 2018. Sullivan cited Flynn’s admissions that he hid the substance of talks with Kislyak and lied when he said he did not know the extent of the Turkish government's involvement in work his firm had obtained and when he claimed an op-ed he wrote for the Turkish president’s benefit was done at his own initiative.
spencer.hsu@washpost.com
[Judge to DOJ: Decide on charging Andrew McCabe by Nov. 15 or face release of FBI records]
[Michael Flynn sentencing set for Dec. 18 in case where he pleaded guilty to lying to FBI]
[‘I’m not hiding my disgust, my disdain’: Veteran judge upends hopes of Trump allies as he spotlights Flynn’s misdeeds]
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Spencer S. Hsu is an investigative reporter, two-time Pulitzer finalist and national Emmy Award nominee. Hsu has covered homeland security, immigration, Virginia politics and Congress.
Carol Leonnig is an investigative reporter at The Washington Post, where she has worked since 2000. She won the 2015 Pulitzer Prize for her work on security failures and misconduct inside the Secret Service.
Democracy Dies in Darkness
Flynn should prepare to have the book thrown at him
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