Judge Sullivan’s John Sirica Moment

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The most riveting report on the sentencing hearing for General Michael Flynn is the op-ed piece by Michael Ledeen that runs in the Wall Street Journal under the headline “The Real Story of the Flynn Hearing.” Mr. Ledeen, who recently co-authored a book with the general, does not believe his friend lied to the FBI and instead thinks shouldn’t have pled guilty. He suggests the judge might nurse the same opinion.

Mr. Ledeen, one of the most farsighted of America’s foreign policy analysts, was in the courtroom Tuesday. He reports that Judge Sullivan “repeatedly invited Mr. Flynn to reconsider his guilty plea.” Judge Sullivan, he notes, “stressed that he had not presided over earlier proceedings in the case and that he was prepared to have Mr. Flynn change his plea or even ask for a dismissal of charges.”

“At times, the judge seemed to implore Mr. Flynn to reopen the deal he made with special counsel Robert Mueller, implying that there was reason to believe his guilty plea had been wrongfully arranged.” General Flynn, though, “wasn’t interested.” He repeatedly told the judge that he was, as Mr. Ledeen put it, “comfortable with his confession” and “did not wish to have it reconsidered.”

Mr. Ledeen reports that the general “wanted the judge to pronounce sentence.” Judge Sullivan, though, “continued unsuccessfully to invite a change in Mr. Flynn’s plea.” So the discussion shifted to whether the general should get jail time. The general’s lawyers stressed his past and potential cooperation. So Judge Sullivan then invited Mr. Flynn to ask for a sentencing delay.

The judge, Mr. Ledeen reckons, “clearly did not wish to pass sentence.” That’s the context in which Mr. Ledeen sees the judge’s inquiries about treason and his expressions of disgust at the general’s crime. “As I understood it,” Mr. Ledeen writes, “Judge Sullivan was warning Mr. Flynn that the sentence might take such nasty suspicions into account, to Mr. Flynn’s detriment.”

It’s Mr. Ledeen’s estimate that the judge “was frustrated at his failure to persuade Mr. Flynn to reconsider his plea: If Mr. Flynn won’t fight, Judge Sullivan won’t do it for him. So it’s Mr. Flynn who must decide between two unattractive options.” It illuminates precisely the Kafkaesque predicament in which the highest ranking prey of the special prosecutor has found himself.

This reminded our editor of President Reagan’s famous joke about lawyers. It was about the man testifying about an accident. Here is the telling of the yarn in Reagan’s words:

The lawyer said to him, while you were lying there at the scene of the accident, didn’t someone come up to you and ask you how you were feeling? And didn’t you answer that you never felt better in your life?

And he said, “Yes, yes. I guess I remember that happening.”

Later on redirect, another lawyer was asking a question, and he said: What were the circumstances when you gave that answer as to how you felt?

“Well,” [the witness] said, “I was lying there and a car came up and a deputy sheriff came out. My horse was neighing with pain and kicking. He had two broken legs. The deputy sheriff put the gun in his ear and put the horse out of his misery.

“My dog had a broken back and was whining in pain and the deputy went over and did the same thing and shot him. Then he came over to me and said, ‘How are you feeling?’”

Why should General Flynn be put in such a position by Judge Sullivan? He has shown himself to be an extraordinarily courageous jurist. The judge knows the general is in no position to fight the prosecutor. The part of courage is for Judge Sullivan to use his own power of judgment the way, say, Judge John J. “Maximum John” Sirica used his sentencing powers to force open the Watergate case.

The circumstances aren’t exactly parallel. Judge Sullivan, though, sits on the same court on which Judge Sirica once sat. If Judge Sullivan thinks something is off in this situation, he can move to force the case open or throw it out altogether. If he thinks General Flynn was unduly squeezed to plead, he doesn’t have to accept that there’s no case or controversy. The judge gave General Flynn until March to make up his mind. The judge himself could use the time to consider his own options.


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