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Why a federal judge delayed Michael Flynn’s sentencing

A federal judge postponed Michael Flynn’s sentencing Tuesday to better enable him to cooperate with the special counsel’s investigation. The judge also told Flynn, "Arguably, you sold your country out." William Brangham asks former Department of Justice official Carrie Cordero about the judge's strong rhetoric, the credibility of Flynn's lawyers' arguments and what the delayed sentencing means.

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  • Judy Woodruff:

    There were surprise developments today in two court cases that involve the president, first at the federal courthouse here in Washington.

    We were expecting Michael Flynn, President Trump's first national security adviser, to be sentenced on a criminal count brought by special counsel Robert Mueller.

    William Brangham begins our coverage there.

  • William Brangham:

    That's right, Judy.

    A year ago, Michael Flynn pleaded guilty to lying to the FBI about his contacts with the Russian ambassador. Since pleading, he's been cooperating on at least two other federal investigations, meeting 19 times with either Robert Mueller's office or other Justice Department lawyers.

    Prosecutors and Flynn's lawyers had both argued that Flynn should get little or no jail time because of his cooperation. But, today, Judge Emmet Sullivan postponed Flynn's sentencing, and rebuked the former three-star Army lieutenant general, saying — quote — "Arguably, you sold your country out."

    Here to help us understand today's dramatic developments is Carrie Cordero. She's a former Justice Department official focusing on national security.

    Welcome back to the "NewsHour."

  • Carrie Cordero:

    Thank you.

  • William Brangham:

    So, before we get to the delay in the sentencing today, can you remind us, what were Flynn's lawyers arguing going into today had happened to their client?

  • Carrie Cordero:

    So, what happened is, the prosecutor's office, the special counsel's office, had filed a document recommending no sentence — no jail time for Michael Flynn in their sentencing memo.

    His lawyers then filed another memorandum, where they also argued to the court that he should receive no jail time. But they made an additional argument that insinuated that he didn't perhaps understand the context of the interviews with FBI agents when he was interviewed in early 2017.

    And then the rest of their filing included many letters of recommendation and people who were vouching for him, describing his character and people who had attributed and supported his years of public service.

  • William Brangham:

    So is it unusual for someone who is accused of making false statements to come into court and say, I didn't know I was supposed to be honest with the FBI, or they somehow trapped me in this?

    Is that a credible argument he was making?

  • Carrie Cordero:

    Well, it was a little odd in this circumstance because we know there are likely other charges that the special counsel's office could have brought against Michael Flynn.

    They probably could have charged him with additional false statements charges, and they also probably could have charged him with at least some violations of the Foreign Agents Registration Art, FARA. And they didn't. They charged him with one count of making false statements.

    And so — and they also were recommending absolutely no jail time. So, really, I think, all his lawyers needed to do was say, we agree with the prosecutors. We appreciate that they appreciate all of the cooperation that he has provided to several different investigations, and here's all these supporting people who are also vouching for his career of public service, and leave it at that.

    I think the fact that they made this additional argument, insinuating that the FBI agents had done something wrong, that got the judge's attention and caused him to order the FBI to release yesterday the investigative interview documents of — that included the…

  • William Brangham:

    This was when they talked to Flynn way back when.

  • Carrie Cordero:

    Right. So the FBI creates a written record — it's referred to as a 302 — of the actual interview. It's their summary, their investigative official summary of their interview with him.

    And those documents were released publicly last night. They do not, however, provide information — I read them. They don't provide information suggesting that Michael Flynn was somehow tricked or entrapped or anything like that.

    It shows that the FBI agents were transparent with him and explained the context of why they were there.

  • William Brangham:

    So then the judge today really rebukes Michael Flynn and uses words like treason, as I mentioned, that you allegedly sold out your country.

    What do you make of the judge, those stinging criticisms of Flynn?

  • Carrie Cordero:

    I thought his comments, his reference to treason, which is a — it's a legal definition, and it is a very harsh, high standard that has to be met. Someone is levying war against the United States and providing aid and comfort to enemies.

    It's not a crime that Michael Flynn was ever considered by prosecutors to be charged with. So it was really unusual and I thought somewhat out of bounds for the judge to go in that direction and talk about treason. And, in fact, after he took a break in the proceeding today, he came back and made comments sort of saying that no one should take those comments quite so seriously. He said something along those lines.

    So I think he went too far in that. On the other hand, I think he was trying to convey the seriousness of an individual who was in such a position of power and authority and a position of trust in the national security establishment, having been the national security adviser when these interviews took place, and having previously served as a senior government official in the national security community.

    So I think the judge was perhaps trying to convey how Michael Flynn had violated that trust.

  • William Brangham:

    So, now we know there's a 90-day delay until he's sentenced again. Does that change anything legally, really, for Michael Flynn?

  • Carrie Cordero:

    It just introduces an element of uncertainty. Lots of things can go on. Developments can happen in other cases. Perhaps something else is discovered and through investigation about Michael Flynn that wasn't previously. You just don't know.

    And so, from a lawyer's perspective, adding more uncertainty to the client's case is not necessarily a desirable outcome.

  • William Brangham:

    Carrie Cordero, always great to have you. Thank you.

  • Carrie Cordero:

    Thank you.

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