[NOTE: Here’s Part II, and the plan right now is that there will be a Part III as well, because Part II became very long and unwieldy. Part I can be found here.
ADDITION: And to clear up any misunderstandings that might arise on the following point – nothing in this post or any of the others in the series is an excuse for Judge Sullivan’s behavior, which I believe is inexcusable. These posts are an attempt to offer a description and explanation for the portion of his behavior that consisted of an emotional reaction that got out of control, which is something that should never occur with a judge. Explanations are not excuses.]
I’ve often wondered what it takes to be a judge. Not the academic or job qualifications, but the personality makeup. It seems to me that, although there’s probably a wide variation among judges, a general tendency would be the need to have faith in one’s own decisions and in one’s ability to be fair. Corrupt judges, of course, would have other characteristics, but I’m speaking generally – and let’s hope that generally in this country most judges are not corrupt.
After all, a judge makes decisions that hugely determine the course of people’s lives. Also, in his/her court, a judge is treated with remarkable deference – all that “Your Honor”-ing”, almost like a remnant of royalty. I know it’s supposed to be deference to the position and the institution of the court rather than this or that specific human flawed person who happens to be the judge, but I think it would be hard for judges not to take all that high esteem personally, especially after years and years of receiving it every day at work. Doesn’t a judge get used to thinking he or she is nearly infallible, a kind of semi-deity?
A judge dealing with criminal cases must decide a number of things and in particular sentence people, sometimes to lengthy terms in prison. In a large number of cases, the way our present legal system operates, those sentences follow guilty pleas arrived at through plea bargaining.
It would take a very naive person to believe that only guilty people plead guilty, particularly as a result of a plea bargain. Many people cling to that notion, however, because to believe otherwise – to believe that a significant number of innocent people plead guilty through fear, intimidation, ignorance, bad legal advice, or frameup – is frightening. It’s a hard thing to face, but it’s true, and it’s also true that in recent years the number of cases decided by plea bargain guilty pleas has risen to huge proportions (see this).
Do some judges actually believe that only the guilty end up pleading guilty? It’s hard to believe judges could be so naive, immersed in the system as they are. But perhaps, on a certain psychological level, they do believe it – or at least they prefer to preserve some portion of that belief in their own minds in order to go about the business of sentencing people.
Was anything like that going on with Judge Sullivan in the Flynn case? Keep in mind that many things can simultaneously be true: Sullivan can hate Flynn politically, Sullivan can be allied with powerful forces that tell him to treat Flynn harshly, Sullivan may be feeling the effects of age, and yet Sullivan can still be motivated at least in part by a belief that Flynn must be guilty if he pleads guilty – and, since Flynn pleaded guilty to lying to the FBI, that Flynn is therefore an opportunistic self-serving liar, and that he became even more of a liar later when he tried to take that plea back and blame others for mistreating him.
I offer as exhibit A to defend this point of view a rather curious thing Sullivan said during the sentencing hearing on December 18, 2018, the same one in which Sullivan’s out-of-the-blue-came-from-nowhere talk of Flynn’s possible treason got a lot of publicity in the MSM (I’ve discussed some aspects of that hearing already in Part I). The December 18, 2018 proceeding was supposed to be a sentencing hearing some time after the plea colloquy – when Flynn had pleaded guilty under oath – had occurred under a different judge who’d had to recuse himself because of a previously undisclosed friendship with Strzok, of all things. But on December 18, Judge Sullivan (the new judge) said at the outset of the sentencing hearing that he considers this an “extension” of the plea colloquy.
In a later document from Flynn, he describes that announcement from Sullivan as having been something neither he nor his lawyers had prepared for, so it took them by surprise. But at the hearing, we see that Flynn’s lawyer fails to object, and so it proceeds as an “extension” of the plea colloquy.
Go to the transcript of the hearing and look at page 7 (in the following, when Judge Sullivan refers to Flynn’s “briefing,” he is referring to a memorandum Flynn’s lawyers had recently filed that stated Flynn had been interviewed by the FBI without receiving a warning and without counsel) [my emphasis]:
SULLIVAN: Mr. Flynn’s briefing concerned the Court, as he raised issues that may affect or call into question his guilty plea, and, at the very least, maybe his acceptance of responsibility. As such, the Court concludes that it must now first ask Mr. Flynn certain questions to ensure that he entered his guilty plea knowingly, voluntarily, intelligently, and with fulsome [sic] and satisfactory advice of counsel. I cannot recall any incident in which the Court has ever accepted a plea of guilty from someone who maintained that he was not guilty, and I don’t intend to start today. So I’m going to invite Mr. Flynn and his attorney or attorneys to come to the podium, and I’m going to ask the courtroom deputy to administer the oath to Mr. Flynn.
Sullivan is saying something quite curious there, in my opinion. Does he actually think that no one in his court has ever entered a false plea of guilty? Or is he just saying that no one has ever simultaneously said he/she is guilty and not guilty? But Flynn had not entered that memorandum about not having a lawyer at the interview in order to say he therefore was not guilty. He’d entered it as part of the argument for getting a lighter sentence without jail time. And yet Sullivan seems to see a contradiction between the guilty plea and the statements in the memorandum.
I think this is where Sullivan feels an element of genuine anger at his own discomfort. There is some uneasiness and/or contradiction he senses in the situation that causes him some cognitive dissonance. So to resolve that feeling, he wants to make it crystal clear in the record – and to himself – that Flynn fully intends to plead guilty. That’s when Sullivan puts Flynn under oath and asks him a series of questions that cement Flynn’s guilty plea once again.
In addition to feeling that Flynn’s admission of guilt must be reiterated, Sullivan wants to make sure the Flynn takes responsibility for this terrible thing he’s done, this lying. The memorandum from Flynn’s side that mentions Flynn’s not having been afforded warnings and a lawyer strikes Sullivan for some reason as an attempt to evade responsibility, which I think angers Sullivan as well.
Sullivan wants to see a penitent, unequivocally guilty Flynn taking full responsibility, and Sulllivan doesn’t perceive Flynn to be doing that, which makes Sullivan uneasy. So he’s going to make Flynn own up to it, by gum.
I don’t think that at that point Sullivan was aware of the specific pressures and threats brought to bear on Flynn in order to extract that guilty plea, but Sullivan must have known or should known that this is often part of the plea bargaining process. Flynn describes his own feelings in a later document (see p 10) in which he says that in the days leading up to the December 18 hearing, which was expected to be perfunctory and basically an approval of the lenient sentencing agreement negotiated by the two sets of lawyers, his own lawyers from Covington kept advising him to “follow the path” (that is, the guilty plea) to make sure nothing further would happen to his son. In paragraph 41 (they are numbered), Flynn says the fact that the hearing turned into a plea colloquy took him and his lawyers “completely by surprise” and that they were “unprepared.” He also says “the entire experience was surreal, and that day was one of the worst days of my life.” And in paragraph 42 he says he was unprepared to decide on the spot whether to withdraw his guilty plea, consult with other lawyers, or follow the advice that his then-lawyers had been hammering home to him. He also mentions that, prior to that December 18 hearing, his lawyers had told him that if he withdrew his guilty plea, he would be “giving them the rope to hang yourself.”
He was caught in a terrible dilemma and without guidance, so he “followed the path” that had been rehearsed and set out: continue to plead guilty.
I am relatively sure that when Flynn says it was a surreal and terrible day, he is referring not just to his surprise and his dilemma about the plea, but in particular to Judge Sullivan’s “treason” outburst that followed later, and which I’ve already described somewhat in Part I. What prompted the outburst from Sullivan?
First the transcript indicates that after Flynn and his lawyers had answered all of Sullivan’s questions designed to re-state the plea and its related elements, Judge Sullivan went on to what was supposed to be the sentencing phase, the original plan for the hearing (starts on p. 17). As part of that process Sullivan reviews the possible penalties, and the facts of the case to which Flynn had previously acceded, including the Kislyak phone call and Flynn’s FARA filings (the FARA issues begin to be described on p. 22). Sullivan also described the cooperation that Flynn had offered the government and agreed to offer in the future (that discussion begins on p. 25).
It was that last bit – help in the future – that apparently was the sticking point for Sullivan regarding sentencing that day. On page 26 he says “the courts are reluctant to proceed to sentence unless and until cooperation has been completed.” He indicated that he couldn’t simply approve the plea bargain and the suggested sentence (no prison) of the two sets of lawyers, because Flynn needed to offer further assistance, and that assistance should involve testifying in the trial of his business associates’ FARA case (the one I’ve described at some length in this previous post).
Prosecutor Van Grack (p. 27) tries to say that Flynn has already cooperated in that case – and mentions the fact that the accused, Rafiekian and Alptekin, had just been indicted the day before, with Flynn’s help. And at the bottom of page 27, Sullivan asks whether Flynn could have been charged, too, in that indictment, to which (p. 28) Van Grack answers “yes.”
This must have sent a shiver down Flynn’s already well-chilled spine, reminding him that if this hearing didn’t go well, there was still the possibility not only of his own indictment regarding Turkey and FARA, but of his son’s, although Sullivan doesn’t mention the latter and may not even be aware of it, since the lawyers on both sides had made sure that that part of their agreement had been (illegally) kept from the court, as I described in this post.
Sullivan and the prosecutor then discuss the substantial penalties possible for the type of FARA offense Flynn has neither been charged with nor indicted for, but supposedly could have been charged with. Then finally it seems as though Sullivan is beginning to discuss the actual sentence he will be imposing that day, and (p. 31) Sullivan says he’s not bound by the recommendations in the lawyers’ agreement.
This also must have been a shock to Flynn, who previously had been assured that it would be approved. It might also have been a surprise to both sets of lawyers. The reason Sullivan gives for his statement is that Flynn has not yet fulfilled his full end of the bargain. Sullivan also makes it clear (towards the bottom of p. 31 into p. 32) that the sentence he’s planning to give Flynn if he sentences him today probably is going to be harsher than Flynn would get after helping further with the trial of the other two men.
And then (p. 32) Sullivan says this:
This crime is very serious. As I stated, it involves false statements to the Federal Bureau of Investigation agents on the premises of the White House, in the White House in the West Wing by a high ranking security officer with, up to that point…an unblemished career of service to his country.That’s a very serious offense.
I think by then Sullivan had revved himself up to an even greater a state of outrage. At this point, I believe that he saw Flynn as a liar who had disgraced his position and his stature, and had just admitted that disgrace and those lies once again, under oath. I think Sullivan felt what may have been a satisfying rush of contempt for Flynn, one that relieved him of any lingering doubt about the fact that Flynn needed a harsh punishment – and that he, Judge Sullivan, was going to extract his full pound of fleshy cooperation from Flynn before he would lighten the sentence one iota no matter what the lawyers and even the prosecutors had recommended. He was the judge, wasn’t he?
And it was then, with hardened heart and feeling what he considered righteous anger, that Sullivan made his extraordinary and completely uncalled-for statements about treason, some of which have already been described in Part I.
[NOTE II: To be continued soon in Part III.]
