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https://www.wsj.com/articles/the-real-story-of-the-flynn-hearing-11545264704

The Real Story of the Flynn Hearing by Michael Ledeen
Dec. 19, 2018

The dramatic Tuesday hearing for former national security adviser Mike Flynn didn’t produce a sentence. Instead, Judge Emmet Sullivan gave Mr. Flynn a delay to reconsider his options. I was in the courtroom, and my reading of Judge Sullivan’s treatment of Mr. Flynn (with whom I co-wrote a 2016 book) was rather different from what most reporters have said and written.

Judge Sullivan repeatedly invited Mr. Flynn to reconsider his guilty plea on a charge of lying to the Federal Bureau of Investigation. Judge Sullivan stressed that he had not presided over earlier proceedings in the case and that he was prepared to have Mr. Flynn change his plea or even ask for a dismissal of charges. At times, the judge seemed to implore Mr. Flynn to reopen the deal he made with special counsel Robert Mueller, implying that there was reason to believe his guilty plea had been wrongfully arranged.

Mr. Flynn wasn’t interested. Over and over he told Judge Sullivan that he was comfortable with his confession, did not wish to have it reconsidered, and wanted the judge to pronounce sentence. But Judge Sullivan continued unsuccessfully to invite a change in Mr. Flynn’s plea.

The discussion then shifted to whether the sentence should include jail time—which prosecutors had recommended against. Mr. Flynn’s lawyers stressed that he had fully cooperated with Mr. Mueller, and—as the special counsel’s written statements have reiterated—he remained cooperative. That could include testifying against Mr. Flynn’s former business associates in a case from Virginia involving the Foreign Agents Registration Act.

Judge Sullivan then invited Mr. Flynn to ask for a sentencing delay until his potential role in the Virginia case was resolved, since it might add to the list of cooperative actions that could mitigate the sentence. Mr. Flynn’s lawyers accepted the offer. Later in the day, Judge Sullivan asked Mr. Flynn to surrender his passport and remain in the Washington area so the whole matter can be reopened anytime.

It was a bizarre situation. Judge Sullivan clearly did not wish to pass sentence, and he warned Mr. Flynn that the punishment could be greater than the “low end” the prosecutors and defense lawyers alike were seeking and that Mr. Flynn clearly wanted, thereby ending two years of misery.

One way or another, Mr. Flynn faces a gloomy future. Either he has to revisit the plea—perhaps exposing his son to hostile action from the special counsel, and certainly increasing his legal costs—or insist on sentencing, about which Judge Sullivan was hardly encouraging, whatever happens in the Virginia case. Judge Sullivan asked a prosecutor if Mr. Flynn’s behavior might “have risen to the level of treasonous activity”—although the prosecutor replied “that was not something that we were considering in terms of charging the defendant” and the judge later clarified that “I wasn’t suggesting he’s committed treason” and “I’ve never presided over a treasonous offense and couldn’t tell you what the elements are anyway.”

As I understood it, Judge Sullivan was warning Mr. Flynn that the sentence might take such nasty suspicions into account, to Mr. Flynn’s detriment. I think the judge was frustrated at his failure to persuade Mr. Flynn to reconsider his plea: If Mr. Flynn won’t fight, Judge Sullivan won’t do it for him. So it’s Mr. Flynn who must decide between two unattractive options.

The case drags on, as do so many special-prosecutor cases. I had six years of nastiness from independent counsel Lawrence Walsh in the Iran-Contra affair. The government was ultimately ordered to cover my legal costs—but again, it took six years. I entirely understand Mr. Flynn’s wish to put this behind him, and this week’s drama must have infuriated him. There he was, one short step—sentencing—from the finish line. Now who knows? There’s no time limit, Mr. Mueller has an unlimited budget and a big, enthusiastic staff. Mr. Flynn’s lawyers surely told him what Washington lawyers invariably tell their clients: Play the game, get it over with. He did—and it wasn’t good enough for Judge Sullivan.

I do not believe Mr. Flynn lied to the FBI. I think he lied when he made his deal with Mr. Mueller, and his confession was a false one. The president can provide clarity by releasing all relevant documents.

Mr. Ledeen is a scholar at the Foundation for the Defense of Democracies.