The long-anticipated court presiding on Tuesday began as scheduled, at exactly 11:30 AM, for what was to be the sentencing hearing of retired Army Lt. General and former National Security Adviser Michael Flynn.
However, within a matter of minutes, the courtroom appeared to turn into a segment of the popular 1980’s sitcom Night Court, with U.S. District Judge Emmet G. Sullivan playing the hapless and uninformed Judge Harry Stone.
The chaos began almost immediately when Sullivan began making a series of fundamental errors — that seemed unimaginable for someone with Sullivan’s vast judicial experience.
Perhaps it was orchestrated by the Mueller team of prosecutors, who had somehow failed to provide detailed information regarding their investigation of Flynn. Maybe it was Sullivan’s judicial demeanor in having prosecutors deciding for him, what sentence was appropriate for Flynn. Whatever it was, it was evident that things were beginning to unravel, fast.
The confusion prompted Sullivan to ask Flynn if he was “quality of treason,” which illustrated just how unprepared Sullivan was in overseeing the case, and perhaps how the Mueller team of lawyers were attempting to whitewash the facts in their favor.
Nothing Flynn did came remotely close to satisfying the strict definition of treason. Which by definition states: “Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same Overt Act, or on Confession in open Court.”
So why would a seasoned U.S. District Judge imply that Flynn might be quality of treason?
The strange and hostile exchange between Flynn and Judge Sullivan didn’t end there, in fact, the judge’s antics became even odder calling Flynn’s action a “serious offense.” Confusing perhaps what Flynn was actually being charged with and his attempt to draw a link between Flynn’s lobbying on behalf of Turkey fuming “you sold your country out.”
However, during recess, Sullivan was informed by his law clerk, that his facts were wrong, in that Flynn had stopped working for any foreign government before he became President Trump’s national security adviser when Trump took office on Jan. 20, 2017.
When the court hearing resumed, Sullivan attempted to walk back his “treason” remark, perhaps aware that his comments had created a firestorm on social media saying, “I felt terrible about that.” He then acknowledged that Flynn’s activity as a foreign agent ended in November 2016 and is thus not directly related to the charges of making false statements two months later.
However Sullivan’s oddball behavior wasn’t only confined to berating Flynn, the erratic judge even took a swipe at the Special Counsel prosecutors, asking whether the government believed that Flynn’s actions rose “to the level of treasonous activity.”
Prosecutors at first were reluctant to answer the question; however, Sullivan persisted asking them if Flynn could have been charged with treason under the Logan Act?
Finally one of the Mueller attorneys responded that was a possibility, at which point Sullivan interrupted saying no one was ever charged with anything under the Logan Act.
Thankfully, considering how unprepared Sullivan was in actually adjudicating this case, his decision to postpone sentencing for 90-days, is in the best interest of Flynn.
Professor Alan Dershowitz in his op-ed piece has analyzed Flynn’s options for staying out of prison, suggesting that Judge Sullivan had erroneously made-up his mind regarding Flynn’s role working for a foreign government while serving in the White House, long before Tuesday’s sentencing.
Sullivan line of questioning suggests that he intends to impose a prison sentence in defiance of the joint recommendation of Mueller and Flynn’s defense attorney, who agreed that Flynn should not serve any prison time.
Flynn has perhaps one option to avoid a probable prison sentence, and that’s to ask publicly for the judge to recuse himself. It’s a long-shot. However, Sullivan’s prejudicial misstatements about treason and about Flynn being a foreign agent while working in the White House is on the record, and therefore a valid reason.