General Flynn’s sentencing hearing before Judge Emmet Sullivan was a real hoot. You have probably read about it, but if not, here’s a good account. Right now, I just want to add a couple of points I haven’t seen made in the accompanying punditry.
Why Didn’t He Bring a Lawyer to the Interview?
Surely, not because he was a simpleton and received no government warning that he should have a lawyer present, to protect his interests.
No simpleton he, the general probably thought having a lawyer present would make him look guilty. But there was a much more specific reason than that.
General Flynn went into the interview planning to lie like a rug. If he had retained counsel, counsel would have insisted on a heart-to-heart prior to the government interview. In that heart-to-heart, Flynn could have told his lawyer the same lies he was planning to tell the government. Or, he could have truthfully told his counsel that he intended to lie like a rug.
If did the former—if he lied to his counsel—then the counsel would have been proceeding on the basis of a total misunderstanding of the circumstances, and would accordingly have given useless advice.
But if he told the truth to his lawyer, and then they went in together to lie to the FBI, then the counsel would have been participating in Flynn’s crime of lying to the FBI, which would have made him or her subject to disbarment and subject to criminal prosecution.
Flynn might, just possibly, found someone admitted to the bar who would risk disbarment and criminal prosecution on his behalf. But that is not the kind of lawyer anyone would want. Even a client who was himself a lying sack of shit would not want that lawyer.
The Downside of Making a Really Bad Legal Argument
It happens all too often that, in the heat of advocacy, a litigator will make an argument so bad that it redounds to the serious detriment of his client and of himself. I suppose that’s just because litigation attracts people with intense personalities, and people with intense personalities sometimes can’t think clearly about how they look and sound.
In any event, such was clearly the case when Flynn’s lawyers urged the judge to go easy on their client because (1) he didn’t have a lawyer present at the interview and (2) the folks at the FBI allegedly made a conscious decision not to inform him of his right to have a lawyer present.
The argument might have carried some weight if their client was a young kid from a poor family with an IQ of 67. But in Flynn’s circumstances, that argument was never going to work. And it was virtually guaranteed to really piss off the judge. That would be the person with wide discretion over the sentence your client will actually serve.