Judge Emmet Sullivan Delays Flynn Sentencing After Threatening Prison

Retired Army Lt. Gen. Michael Flynn, center, arrives for sentencing at federal court in Washington, with attorney Robert Kelner, right, on Tuesday, December 18, 2018. Credit: Diego M. Radzinschi/ NLJ

A federal judge agreed Tuesday to postpone Michael Flynn’s sentencing after a hearing to decide the punishment for President Donald Trump’s former national security adviser went awry.

The surprise development came after Judge Emmet Sullivan in Washington, D.C., offered to give Flynn, a retired lieutenant general, more time to consider his decision to plead guilty to lying to investigators probing Russia’s interference in the 2016 election. Sullivan described the offense as “serious” and said he could not guarantee a sentence without prison time, even after the special counsel’s office recommended that Flynn not be incarcerated.

After a brief recess, Covington & Burling partner Robert Kelner said Flynn was “prepared to take your honor up on the suggestion of delaying sentencing.” The delay, Kelner said, would allow Flynn to “eke out the last modicum of cooperation” in his deal to assist in a separate case being prosecuted in Alexandria, Virginia, involving two of Flynn’s former business associates.

Kelner envisioned that Flynn could be called to testify in a case against Bijan Rafiekian and Kamil Ekim Alptekin, who were charged Monday with acting as unregistered agents of the Turkish government and lying to the FBI.

Sullivan set a March 13 deadline for a status report.

The surprise development came after what began as a routine sentencing hearing devolved into a dramatic discussion on Flynn’s conduct. Sullivan at one point questioned whether, “hypothetically,” Flynn could have been charged with treason, and told the former lieutenant general that, “arguably, you sold out your country.”

Sullivan later walked back those comments.

Still, Sullivan spoke at length Tuesday about the seriousness of Flynn’s crime, at one point expressing “disdain” for his actions. He cautioned Flynn that, if they proceeded to sentencing on Tuesday, he could not rule out prison.

"I'm going to be frank with you: This crime is very serious,” Sullivan said, highlighting more than once how Flynn was a high-ranking official who lied to the FBI on White House grounds.

Sullivan described how Flynn worked as an unregistered agent of a foreign power while serving as a Trump adviser, later correcting his statement. But in that exchange, the judge pointed to a flag behind him and said Flynn’s conduct arguably undermined “everything this flag” stands for.

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