Harvard Law professor said former Trump national security adviser Mike Flynn has three not so good options to stay out of prison, to include a “nuclear” option that may prove to be the most risky.
In an op-ed run by Fox News, Dershowitz said it was “obvious” the judge who will be handing down the penalty, U.S. District Court Judge Emmet Sullivan, “regards Flynn as guilty of far more serious crimes than he pleaded to or was even charged with committing.”
Sullivan suggested that Flynn might be guilty of treason before walking it back in what proved to be a wild sentencing hearing — the judge told Flynn, “You sold your country out” — and Dershowitz took the judge apart over the assertion.
“This reflects an abysmal ignorance of the governing case law,” he wrote. “Nothing Flynn did comes even close to satisfying the strict definition of treason.”
Flynn pleaded guilty to lying to the FBI, and while he admitted he represented NATO ally Turkey without registering under the Foreign Agents Registration Act, he wasn’t charged by special counsel Robert Mueller for failing to register — this role coming before he joined the Trump administration.
Dershowitz said the judge “probably came into the courtroom before the recess with his mind made up about the sentence he intended to impose based on his erroneous views” of Flynn, insisting Sullivan “deliberately telegraphed his intention to impose a prison sentence” even though Mueller has called for a lenient sentence.
With the sentencing now delayed until March and a prison sentence more likely, as a result of the judge’s actions Tuesday, Dershowitz said “Flynn has three options – none of them good.”
Those options are, according to the Harvard Law professor:
Flynn’s first option is to ask the judge to throw out his questionable guilty plea – but it will be difficult to do so in light of his statement at the sentencing hearing that he accepts his guilty plea and knew he was doing wrong when he lied to the FBI.
Flynn’s second option is to cooperate even more, but there may not be much more he can say or do. If he admits he withheld some cooperation that would hurt him.
The former national security adviser’s third option – a nuclear one – would be to seek to recuse Judge Sullivan because of the judge’s prejudicial misstatements about treason and about Flynn being a foreign agent while working in the White House. But this, too, may backfire, because judges often punish defendants for “judge shopping”.
As for Judge Sullivan’s actions, former U.S. attorney general Michael Mukasey called the proceeding “extraordinary” and “bizarre” during an appearance on Fox News.
“There’s only one judge I ever saw do things like that and he was in the Southern District of New York and was known to be off his rocker,” the former prosecutor said.
Fox News reported after the sentencing delay, Sullivan ordered Flynn to surrender his passport and not travel outside a 50 mile radius of the area, as if Flynn, a former general in the U.S. Army, was a flight risk — an order Mukasey called “over the top.”
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