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Michael Flynn’s Rough Day in Court Showed Political Arguments Aren’t Working With Judges

5 minute read

Just days after Donald Trump’s inauguration, the deputy director of the FBI called Michael Flynn, the new national security advisor, on a secure line. After chatting about a recent training, Flynn suggested the FBI send over some agents to talk with him about his conversations with the Russians during the presidential transition.

What happened next is still reverberating nearly two years later.

In a court filing last week, Flynn’s lawyers noted pointedly that the two FBI agents who later visited Flynn did not remind him, prior to talking, that it’s a crime to lie to federal investigators. On Tuesday morning, White House spokeswoman Sarah Huckabee Sanders went on Fox News to argue that the agents “ambushed” Flynn. Some conservative pundits even suggested that the interview might lead a federal judge on Flynn’s case to issue a rare rebuke of Special Counsel Robert Mueller and the FBI for overstepping.

Instead, the judge rebuked Flynn — both for the conduct that got him into legal trouble in the first place and for his lawyers’ attempts to soften his guilty plea by complaining about the nature of the FBI interview.

Noting that he could not hide “my disgust, my disdain” for Flynn’s conduct, District Court Judge Emmet Sullivan — who was appointed to various judicial posts by Ronald Reagan, George H.W. Bush and Bill Clinton — harshly criticized the former national security advisor, hinting that he might ignore Mueller’s recommendation of a light sentence because of the aggravating circumstances.

Sullivan seemed particularly offended that Flynn had lied to FBI agents while on the grounds of the White House. Flynn’s conduct, Sullivan said, had undermined everything that the flag in the courtroom stands for. The judge also criticized Flynn for working for the Turkish government without registering, and at one point asked Mueller’s staffers if they had considered bringing treason charges. (They had not, a prosecutor answered.)

“Arguably, you sold your country out,” Sullivan told Flynn.

After a break, Sullivan walked back his remarks somewhat, apologizing for his tone and correcting himself on when Flynn worked for Turkey. But the message was received, and Flynn’s lawyers, having read the room, asked for the sentencing to be postponed until March.

Greg Brower, a former U.S. attorney and senior FBI official, told TIME that the hearing illustrated the disconnect between the frenzied political arguments about the Mueller investigation, often playing out on cable TV, and the routine workings of the law.

“A lot of the nonsense that we see in the news every day — the right-wing talking points about Bob Mueller and the FBI and the DOJ — none of that makes any sense to the average federal judge,” he said. “With hearings like this, we see an example of an apolitical judge just applying the law. And sometimes people are a little taken aback by that, but that’s the way it’s supposed to work.”

Still, some experts said that the nature of the FBI interview with Flynn was not above reproach, particularly the involvement of two players who later came under fire for different reasons: the deputy director who called Flynn, Andrew McCabe; and one of the agents who stopped by to chat with him, Peter Strzok.

McCabe was later fired after the Justice Department determined that he “lacked candor” during an investigation into a leak, while Strzok was removed from the Mueller investigation and later fired after it was found that he had disparaged Trump in text messages to another FBI agent with whom he was having an affair. Trump has repeatedly criticized both officials by name, arguing that they are part of a “witch hunt” against him.

Thomas J. Baker, a former FBI special agent, said the officials were too closely involved in the investigation. “The fundamental problem in this investigation from the FBI end was the way it was managed,” he told TIME. “Contrary to traditional FBI operations, you had a situation where the decision makers — Peter Strzok, McCabe and two or three others — were the only ones involved in it. They were making all the decisions in the investigation and actually going out and conducting the investigation. And that’s bad because you don’t have any independent review.”

But within the D.C. courtroom, none of that seemed to matter. In a series of biting questions, Judge Sullivan undermined Flynn’s lawyers’ line of argument, pressing Flynn on whether he knew that lying to the FBI was a crime and pushing his attorneys to make the case that their client had indeed been entrapped. To each question, the lawyers answered that Flynn knew what he did was wrong, that he had not been tricked by the agents and that he still wanted to plead guilty.

Bradley Moss, a Washington-based lawyer who specializes in national security law, said Flynn’s lawyers’ argument was thin to begin with. He noted that Flynn was informed ahead of time that investigators would be asking him about his contacts with Russian Ambassador Sergey Kislyak and that he was asked if he wanted to have White House lawyers present for the meeting with agents. It was Flynn’s mistake not to have lawyers there, Moss said.

“My seven-year-old knows to ask for legal counsel, only because her father keeps ‘Law and Order’ on the background all the time,” he said.

With Abby Vesoulis in Washington

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