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The sentencing of Michael Flynn was postponed Tuesday after the judge told the former national security advisor "arguably you sold your country out" — and warned the fallen Army lieutenant general that he might be sent to jail if he did not agree to delay the hearing.
Flynn was due to be sentenced Tuesday for lying to FBI agents about his conversations with Russia's then-ambassador to the United States, Sergey Kislyak, in the weeks before President Donald Trump took office. Federal guidelines recommended a sentence of zero to six months in jail.
Flynn's lawyers and prosecutors from special counsel Robert Mueller's office were prepared to argue in U.S. District Court that Flynn receive either no jail time at all — given his guilty plea and extensive cooperation with Mueller — or get the low end of the guideline range.
But that plan was immediately thrown into disarray at an explosive hearing at which Judge Emmet Sullivan pressed the defense hard on its recent suggestions that the case against Flynn was unfair. The judge said that looked liked "backpedaling" from the guilty plea.
Sullivan, who also asked if Mueller had ever contemplated charging Flynn with "treason," later suggested that Flynn might get a less severe sentence once he was actually done cooperating with investigators.
"If you want to postpone this, and come back at some later point ... that's fine with me," the judge said.
"I have to caution you that the sentence imposed today may not be the same sentence you would get after cooperation ends," Sullivan said.
"The court likes to be in a position to say there is nothing else this defendant can to do help the United States of America."
No new sentencing date was set.
Sullivan, noting that he still has "many, many, many more questions," told defense lawyers and prosecutors to submit a status report by March 13.
"Happy holidays," the judge said, as he recessed the sentencing hearing, before Flynn walked out of Washington courthouse into a waiting car.
The delay will allow Flynn to possibly help federal prosecutors in Virginia with a new case. In that case, two former Flynn associates are charged of conspiring in a plot with Flynn to push for the extradition for an exiled Turkish cleric to Turkey, without informing the United States government they were acting as agents for a foreign country. Flynn, who was not referred to by name in that indictment, was involved in the efforts to smear the exiled cleric. Turkey's president claims the cleric orchestrated a 2016 coup attempt.
"All along, you were an unregistered agent of a foreign country while serving as the national security advisor to the president of the United States," Sullivan told Flynn, referring to the other case, for which Flynn was not charged.
"That undermines everything this flag over here stands for," the judge said. "Arguably you sold your country out."
Sullivan told Flynn that if he did not accept an offer to postpone his ongoing sentencing hearing, "I cannot assure you that if you proceed today, you will not receive a sentence of incarceration."
"This is a very serious offense," said Sullivan.
"A high ranking senior official of the government making false statements to the Federal Bureau of Investigation while in the White House," Sullivan said.
"Very serious crime," Sullivan told the 60-year-old retired Army lieutenant general. "Can't minimize that."
"I'm not hiding my disgust, my disdain," the judge said.
"Hypothetically could he have been charged with treason?" Sullivan asked prosecutor Brandon Van Grack.
Van Grack answered, "Because It's such a serious question, I am hesitant from answering."
Sullivan later said: "I wasn't suggesting he was committing treason. I was just curious if he could have been charged. Lots of conspiracy theories out there. Not taking any uncalled offenses into consideration. Was trying to consider benefit. I'm not suggesting treason. "
Van Grack said, "The government has no reason to believe the defendant committed treason."
Sullivan offered Flynn the chance to postpone the sentencing in light of a prosecutor's statements that he could continue cooperating with them even after Tuesday.
Sullivan called a recess after Flynn accepted the judge's offer of time to speak with his lawyers. When court resumed, Flynn's lawyers told him they wanted to postpone the sentencing.
Before that, Van Grack, told Sullivan that "it remains a possibility" that Flynn could continue to cooperate with Mueller's ongoing investigations even after being sentenced.
Van Grack noted that Flynn, in addition to other significant assistance to Mueller, had "provided substantial assistance" to federal prosecutors in Virginia, who on Monday revealed charges against former Flynn associates Bijan Kian and Kamil Alptekin.
They are charged with conspiring to smear and win the extradition of exiled cleric Fethullah Gulen at the behest and funding of the government of Turkey.
Sullivan began the hearing by pushing Flynn and his lawyers on their suggestion in a recent court filing that he might have been unfairly treated by the FBI in the case, which was lodged by Mueller.
Flynn told Sullivan that he did not want to withdraw his guilty plea or to challenge the fairness of the FBI interview that led to his plea.
Flynn's lawyer told the judge he had not been entrapped by the FBI.
"I was aware" that lying to the FBI was a crime, Flynn said, declining an offer by Sullivan to postpone the sentencing.
Some supporters of Flynn — along with Trump — had suggested he did not know that.
Defense lawyers last week in their court filing noted that Flynn did not have an attorney with during that Jan. 24, 2017, interview, and agents didn't warn him that he could be prosecuted if he lied to them.
"I cannot recall any incident in which the court accepted a guilty plea in which he was not guilty, and I don't intend to start today," Sullivan said.
"Are you continuing to accept responsibility for your false statements?" Sullivan asked.
"I am, your honor," Flynn answered.
Flynn lawyer Robert Kelner told Sullivan the reason the defense had talked about the circumstances of the FBI interview was because "we thought it was important for us to explain to the court those aggravating circumstances that are not present here today."
Kelner noted that a former Trump campaign advisor George Papadopoulos and other targets of Mueller had been warned of the risk of lying to investigators, and those defendants "did have counsel and lied anyway."
But Kelner also said of Flynn, "He fully accepts responsibility, stands by his guilty plea which was made based on knowing and willing conduct."
Sullivan said those cases were not analogous to Flynn's, since they did not involved high-ranking officials who committed crimes in the West Wing of the White House.
"This case is in a category by itself," Sullivan said.
Flynn's lawyer said, "General Flynn has held nothing back. Nothing."
David Weinstein, a former federal prosecutor who now does criminal defense work, told CNBC, "Given the judge's comments, it was not unheard of for Flynn's lawyers to seek a continuance of the sentencing hearing."
"While both the defense and the government were seeking a non-jail sentence, the court was not bound by that recommendation," Weinstein said. "By continuing the sentencing and his cooperation, the defense will be in a better position for the government to file a specific motion seeking a downward departure for his cooperation."
He has met more than 19 times with Mueller's team and other investigators. Mueller, in asking for leniency for Flynn, had cited Flynn's help in uncovering contacts between Russian government officials and members of Trump's presidential transition team.
Flynn's aborted sentencing came a week after Trump's former personal lawyer Michael Cohen was sentenced to three years in prison for financial crimes, and for campaign violations related to hush-money payments shortly before the election to two women who claim to have had affairs with Trump.
Cohen also had pleaded guilty to lying to Congress about details of an aborted plan by the Trump Organization to build a tower in Moscow.
Trump's former campaign chief Paul Manafort, a longtime Republican consultant, is scheduled to be sentenced for bank and tax fraud charges on Feb. 8.
Those crimes relate to Manafort's work in Ukraine on behalf of pro-Russia politicians before he joined Trump's campaign.
Flynn was interviewed by FBI agents just two days after being sworn in as national security advisor.
In that interview, according to court documents, he claimed that he did not recall ever asking then-Russia ambassador Kislyak during a phone call in December 2016 to not have Russia retaliate against the United States for sanctions imposed on the country after accusations that Russia had interfered in the recent presidential election.
Flynn also told the agents, "no," when asked if he made any comment to Kislyak about Russia voting in a certain manner at the United Nations on a resolution sponsored by Egypt condemning Israeli settlements in the West Bank.
Both of those statements to the agents were false.
Flynn resigned after just 24 days in office after he lied to Vice President Mike Pence about his conversations with Flynn.
Hours before Flynn was sentenced, Trump wished him "good luck" in a tweet that also again reiterated the president's claim that his campaign did not collude with Russians to influence the outcome of the 2016 election. Mueller is continuing to investigate that possibility.
Last year, a day after Flynn pleaded guilty, Trump had said in a tweet: "I had to fire General Flynn because he lied to the Vice President and the FBI. He has pled guilty to those lies. It is a shame because his actions during the transition were lawful. There was nothing to hide!"