On Tuesday, former national security adviser Michael Flynn appeared before Judge Emmett Sullivan for sentencing in the Russia investigation. Entering the hearing, Flynn walked an ill-advised tightrope between claiming that he had “completely and utterly cooperate[d]” with the Russia investigation and implying to the judge that federal agents had tricked him into lying. Sullivan had little tolerance for Flynn’s position, warning Flynn that he might be sentenced to prison and inviting him to try to give additional cooperation to the government to avoid that fate. In order to avoid prison, Flynn and his attorneys had little choice but to ask for a delay of the sentencing hearing in order to demonstrate further cooperation. Still, there is little chance that circumstances will change for Flynn. Had the government wanted or expected significant additional cooperation from him, it would not have proceeded to sentencing in the first place.
Cooperators present the government with a complicated problem—they are usually participants in a criminal act; they have often already lied to law enforcement; and the government has to not only corroborate that they are reliable, it has to ensure that they remain cooperative. The great incentive to cooperation is the potential for a reduction in a sentence for a cooperator.
Although many defense attorneys and activists concerned about the coercive power of the state bristle at sentencing reductions for cooperation, the policy recognizes two things. First, it is based in the belief that wrong doers should be rewarded for taking responsibility for their actions. Second, since litigation is supposed to be a search for the truth, adverse parties who surrender their rights in service to the truth should be rewarded. In criminal cases, the benefits of cooperation manifest themselves in two separate places—Section 5K1.1 of the federal Sentencing Guidelines and a sentencing reduction pursuant to Rule 35 of the Federal Rules of Criminal Procedure.
The difference between these two provisions is one of timing—Rule 35 motions occur after a defendant has already been sentenced and usually must be filed within a year of sentencing. The government files 5K1.1 motions at the time of sentencing. Although this is an earlier stage of a criminal proceeding, 5K1.1 motions provide the parties with greater opportunities. Since sentencing could theoretically be postponed indefinitely, so can a 5K1.1 motion—providing the government and the defendant with greater flexibility than a Rule 35 motion. Both motions are merely requests for the court to reduce the defendant’s sentence either from the sentence imposed (in a Rule 35 motion) or from the sentence recommended by the guidelines (in a 5K1.1 motion).
To ensure that the defendant fully cooperates and to be able to provide the judge with a complete account of his or her cooperation, prosecutors usually wait until the cooperation is complete and all potential co-defendants have been sentenced before they proceed to sentencing the cooperator. Because a defendant’s sentencing reduction is often predicated on the significance of his or her cooperation with the government, defense attorneys also often seek to postpone sentencing of cooperators so as to put their clients in the best position possible by describing the full extent of their cooperation.
Which brings us to Michael Flynn. Flynn entered sentencing on Tuesday, a day after the government indicted his business associates for illegal foreign lobbying. In most cases, had Flynn worried that he needed to show greater cooperation with the government in order to avoid jail time, he would have sought to postpone his sentencing. Since judges’ dockets are full and no one wants to waste a federal court’s time, that would usually not occur in a dramatic in-court hearing like it did. Rather, it would have taken the form of a written motion filed prior to the sentencing hearing—even with the quick turnaround required by this case. Similarly, had the government expected more cooperation from Flynn and wanted to ensure his truthfulness, it also would have sought to postpone the sentencing in advance of the hearing itself.
Neither of those things happened, which leads to two conclusions. First, the judge spooked Flynn and made him worried that he was going to get prison time. Flynn, who was facing a judge who has been very tough on prosecutors in the past, likely believed that whatever cooperation he gave was sufficient to ensure that he faced no jail time. Otherwise, he would have sought to postpone the hearing in advance, pending his cooperation with the illegal lobbying case.
Unfortunately for him, the second takeaway is that the government is most likely finished with Michael Flynn. Indeed, when Flynn’s attorney says that the illegal lobbying cases is the only area “in which there is anything left to give,” he is probably speaking the truth and even that seems paltry. If Mueller were following the general prosecutorial playbook to leverage maximum cooperation, as his history as a prosecutor would indicate, he would have sought to postpone Flynn’s sentencing if he thought he needed him more.
Similarly, had the U.S. Attorney’s Office in the Eastern District of Virginia wanted Flynn’s help for the illegal lobbying case, it would have likely worked with the special counsel’s office to postpone the sentencing hearing. Although Flynn’s son may have criminal exposure as well, it is unlikely that the government is holding that in its pocket to promote Flynn’s continued cooperation. The government is required to memorialize all benefits that it gives cooperators and disclose those to any trial defendants so that they can use them for cross-examination. Using children as poker chips is such an unsavory tactic, it could sink a criminal trial, and prosecutors are loath to employ it. Indeed, there is no indication that the Justice Department and Flynn have come to an agreement on his son.
While there are other safeguards to help ensure Flynn is honest if he is ever called to testify, the lack of a final sentence is the most powerful leverage Mueller’s team has to prevent further deception. This was a leverage that the prosecutors were willing to forgo in order to sentence Flynn on Tuesday. Indeed, it is instructive that Mueller’s team recommended no jail time for Flynn pursuant to 5K1.1 and openly stated that he had provided “substantial assistance” to the government. That is language usually reserved for a final assessment of a defendant. If Flynn had proceeded to sentencing but was still expected to provide additional cooperation, the government would usually wait on such a recommendation and make a motion at a later date pursuant to Rule 35. The only conclusion is that they don’t think they need him anymore— at least not for anything big.
Michael Flynn asked to delay his sentencing after the judge had excoriated him because he seemed to have no good options. Regrettably for him, he still doesn’t.
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