Former National-Security Adviser Michael Flynn on Tuesday got an unpleasant lesson on the difference between politically effective arguments and legally astute ones. Backed by an array of well-wishers, including President Donald Trump, and buoyed by widespread conservative arguments that the FBI had violated his rights, Flynn walked into a federal courtroom in Washington, D.C., hoping for the probationary sentence that Special Counsel Robert Mueller had recommended. Instead, he was threatened with jail by a furious U.S. District Judge Emmet Sullivan, who accused him of selling America out and forced him to retreat from his evasions. Flynn’s lawyers hastily agreed to delay the sentencing until March 2019 so that he might strive to cooperate further with the special counsel and perhaps work off the custodial sentence that Sullivan was clearly contemplating.
This may have been a shock to Flynn, but it was predictable to everyone who understands that federal court is neither Twitter nor a cable-news show.
Nobody wants to be charged with a federal crime, but if you must, you want the deal Flynn got. He was the first to cooperate in the special counsel’s investigation in December 2017, and got the first cooperator’s prize: a plea to a single count of lying to the FBI, an offense usually resulting in a sentence of probation. He worked hard to earn the trust and even the respect of the Special Counsel’s Office, submitting to 19 interviews that were “particularly valuable” because he was the first in the door, and likely inducing others to plead guilty through his cooperation. Mueller’s team recommended that he get probation, a permissible sentence under the applicable United States Sentencing Guidelines. The prosecutor recommended the same. Every defendant’s ideal sentence was his to lose.