Editor’s Note: Elie Honig, a former federal and state prosecutor, is a CNN legal analyst and a Rutgers University scholar. The views expressed in this commentary are his own. View more opinion articles on CNN.
When Michael Flynn goes into federal court on Tuesday to be sentenced, there will be little suspense but much mystery. It is all but certain that Judge Emmet Sullivan will not sentence Flynn to prison. But weighty questions – about Flynn’s motivation for lying to the FBI and his usefulness as a cooperating witness to special counsel Robert Mueller – will hang over the proceeding.
First, though, why is it highly unlikely that Flynn will serve time? Flynn was convicted of one count of lying to the FBI for falsely denying that, during the Trump transition in December 2016, he asked Russian Ambassador Sergey Kislyak to refrain from escalating a battle over sanctions that President Barack Obama had imposed in response to Russian election interference. While Flynn lied about an unusually serious subject, the federal sentencing guidelines nonetheless recommend a sentence of zero to six months imprisonment. It is extremely rare for a first-time, nonviolent offender in that range, like Flynn, to be sentenced to any time.
In addition to the lenient sentencing guideline, Flynn’s attorneys argue in their sentencing memo for a no-jail sentence based primarily on Flynn’s lifetime of military service, his acceptance of responsibility for his crime, and his “timely and substantial assistance” to Mueller. [Disclosure: I once worked for the law firm that now represents Flynn]. More importantly, Mueller in his sentencing memo fully vouched for Flynn, joining in the request for no time and noting Flynn’s “particularly valuable” cooperation.
While the outcome is not much in doubt, two bigger-picture questions remain. First: Why did Flynn lie to the FBI? Flynn’s lawyers conspicuously dodge this issue in his sentencing memo. Of all people, Flynn – a decorated military veteran, an accomplished intelligence officer and President Donald Trump’s short-lived national security adviser – should have understood that lying to the FBI would put himself in peril and might compromise the broader national interest.
Indeed, Flynn lied to the FBI about an exceptionally weighty issue. When he spoke with Kislyak during the presidential transition, Flynn sent an implicit but clear message to Russia: Stand down on Obama’s sanctions for now, and we will take care of you when we take office in a few weeks. That statement itself is consequential as a foreign policy matter, and to lie about it to the FBI suggests Flynn was trying to protect somebody – perhaps himself, perhaps Trump. If I was in Mueller’s shoes, this would have been the first question I asked Flynn during the cooperation process: Why did you lie, and whom were you trying to protect? The answer could go to Mueller’s core mandate to investigate potential coordination between Russia and the Trump campaign.
The second lingering question goes to Flynn’s cooperation: How much information did Flynn give Mueller, and how important is that information to the larger investigation? Flynn’s cooperation remains largely a mystery. Mueller’s sentencing memo was rife with black ink blotting out the specifics of Flynn’s cooperation.
But Mueller dropped intriguing hints. Mueller noted that he and other prosecutors met with Flynn 19 times – an enormous quantity for any cooperator, in my experience. Mueller also disclosed that Flynn has cooperated on “several ongoing investigations,” including the core “investigation concerning any links or coordination between the Russian government and individuals associated with the [Trump] campaign.” And Mueller stated that Flynn provided “long-term and firsthand insight” – meaning Flynn was actually in the room when the crimes were committed.
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It may be easy to lose track of Flynn, given the recent swirl of dramatic court appearances and explosive revelations around Michael Cohen, Paul Manafort and others. Flynn, seemingly intentionally, has created minimal drama for Mueller and has kept a low profile since his arrest. But sometimes, in the long term, the quiet one has the most to say.