The Flynn Fiasco

A sentencing hearing devolves into a spectacle of misinformation.

The Editorial Board, WSJ  Dec. 18, 2018

Well, that was bizarre. We’re referring to the fiasco Tuesday of what was supposed to be the sentencing of Michael Flynn. The sentencing was postponed until next year, but not before federal Judge Emmet Sullivan damaged his own reputation with an extraordinary public attack on the former national security adviser for a crime he’s not been charged with or admitted to.

“All along, you were an unregistered agent of a foreign country while serving as the National Security Adviser to the President of the United States. That undermines everything this flag over here stands for. Arguably you sold your country out,” said the judge. He also used the words “treason” and “treasonous.”

But Mr. Mueller has never charged Mr. Flynn with violating FARA, though the former general did represent the government of Turkey before he joined the Trump Administration. A judge isn’t supposed to lose his cool on the bench and berate a defendant for crimes that haven’t been adjudicated in court, much less spread false information.

The outburst was too much even for the lawyers for Special Counsel Robert Mueller, who had to tell the judge that Mr. Flynn did not represent any foreign entity while at the White House. Judge Sullivan later apologized, sort of, telling the courtroom not “to read too much into” his outburst about “treason.” But that came after the falsehood made global headlines.

The FARA outburst does shed some more light on Mr. Mueller’s methods and Mr. Flynn’s guilty plea to a lying charge he may not have committed. FARA is a musty 1938 statute that requires “agents” of a foreign government or principals to disclose their activities.

Mr. Mueller has resurrected FARA from the nearly dead to squeeze people in the Trump circle. Mr. Flynn’s work for Turkey included urging the U.S. government to extradite emigre cleric Fethullah Gulen to the tender mercies of Turkish justice. Mr. Gulen is a political opponent of Turkish President Recep Tayyip Erdogan. This is sleazy work but not illegal.

Mr. Flynn also apparently failed to register under FARA, which would be a crime. And on Monday, just in time for Mr. Flynn’s sentencing, prosecutors in Virginia unveiled FARA charges against two former Flynn associates, accusing them of illegally lobbying for Turkey. The timing was not accidental.

In 50 years through 2016, the Justice Department brought only seven criminal FARA cases and won three convictions. Two were dismissed and two others pleaded to non-FARA charges. Yet the willful failure to register as an agent can result in a sentence of five years in federal jail. It seems clear that Mr. Mueller was holding the threat of FARA charges over Mr. Flynn’s head if he failed to cooperate. Mr. Flynn’s plea to the charge of lying spared a longer potential jail term and bankruptcy for his family—as well as the threat of separate charges against his son.

Yet as we’ve written, Mr. Flynn had no incentive to lie to the FBI agents who interviewed him in January 2017 about his contact with the Russian ambassador to the U.S. Those talks were legal and normal for a new national security adviser. Government documents related to the Flynn sentencing suggest that the FBI lured the former general into a meeting without a lawyer, never making clear that Mr. Flynn was himself under criminal investigation.

According to the FBI’s 302 account, “The interviewing agents asked FLYNN if he recalled any conversation with [Russian Ambassador] KISLYAK in which the expulsions were discussed, where FLYNN might have encouraged KISLYAK not to escalate the situation, to keep the Russian response reciprocal, or not to engage in a ‘tit-for-tat.’ FLYNN responded ‘Not really. I don’t remember. It wasn’t “Don’t do anything.” ’” No wonder the interviewing agents, according to an FBI summary, “both had the impression at the time that Flynn was not lying or did not think he was lying.”

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Judge Sullivan noted that the Flynn defense filing about the FBI’s behavior “concerned the court,” and he offered Mr. Flynn several opportunities to withdraw his guilty plea. Mr. Flynn chose not to—and in that case it’s too much to expect Judge Sullivan to do that for him.

But that doesn’t condone the judge’s rhetorical abuse or the tactics of the FBI in lying to Mr. Flynn about their interviewing purpose, or charging him with a crime he probably didn’t commit. The Beltway media want to divide the Russia probe into white hats (Mueller) and black hats (all things Trump). But it ought to be possible to let Mr. Mueller complete his Russia probe without interference while also holding the FBI and prosecutors to standards of fair and honest behavior.

FBI agents, prosecutors and judges wield awesome power that can destroy families and careers. They have to be held to account as much as unpopular Presidents.