The media is having a feeding frenzy, trying to interpret the sentencing memo just filed in Michael Flynn’s case, but most of these interpretations are misplaced. The sentencing memo filed by the Office of Special Counsel is a fairly standard filing by federal prosecutors. So, rather than relying on political pundits to interpret this document, allow me provide you with the insight of an attorney experienced in federal criminal matters.
The media has made a big to-do of Mueller’s decision to describe Flynn as having provided “substantial assistance.” However, those enamored with Mueller’s choice of words should understand that “substantial assistance” is the same language used to describe all cooperation agreements and is the title of the relevant section of the U.S. Sentencing Guidelines - §5K1.1, Substantial Assistance to Authorities. To explain how this section applies to Flynn, I will show how it works in ordinary, non-political criminal cases.
Federal criminal prosecutions are frequently built on the testimony of cooperating witnesses, usually a former member of the charged conspiracy. It is the classic “prisoner’s dilemma,” where the first defendant to flip on his or her compatriots gets a reduced sentence. While this much is well known, the nuts and bolts are a bit more technical and less understood by the public.
A federal cooperation agreement requires a defendant to plead guilty and agree to provide information and assistance to the government. However, what most people do not know and Hollywood persistently gets wrong, is that there is no agreement about how much the sentence will be reduced. Instead, the defendant puts himself at the complete mercy of the federal prosecutor and the judge, without any promises about what sentence they will receive.
A cooperating defendant is required to immediately plead guilty to everything they did, without any reduction in charges. There are multiple reasons for this. First, it helps their credibility with a jury that they have accepted full responsibility for all their misdeeds. Second, it is a heavy hammer that prosecutors can hold over the cooperators head, because if they breach the agreement, they cannot withdraw their guilty plea and will be sentenced for the full weight of their offenses.
Although the defendant pleads guilty immediately, the sentencing hearing is pushed far into the future, sometimes many years, until cooperation is complete, so that the full extent of the cooperation can be considered by the sentencing judge. This is accomplished through the submission of what is frequently referred to as a “5K letter,” where the prosecutors inform the judge of the full nature and extent of the cooperation to be considered at sentencing — the same redacted document that Mueller filed for Flynn.
Because there is no direct quid pro quo (i.e. promise of probation in exchange for testimony), a cooperator has a motivation to keep the prosecutors happy, knowing that the more he or she helps, the better this letter will look and the more likely the judge will impose a lenient sentence. It also bolster’s the cooperating witness’s credibility because when testifying before a jury, “I don’t know how much jail time I’ll get” sounds far better than “I’m getting no jail in exchange for my testimony here.”
With that background, Mueller’s sentencing memo, and the entire Flynn prosecution, seems much less ominous than many in the media are making it out to be. The fact that Mueller’s memo has been filed is strong evidence that there are no further prosecutions forthcoming from Flynn’s information. No legitimate federal prosecutor would allow Flynn to be sentenced if there is a possibility that he will have to testify in a forthcoming case.
This is the particularly troubling aspect of the op-eds and interviews now being presented by former federal prosecutors; in order to squeeze this document into a narrative which makes this appear as bad news for the president, they must forget how they used to practice law. Aside from the fact that none of these former prosecutors would have submitted such a sentencing memo if the information was leading to further prosecutions, the language that they zero in on as “remarkable” is, in fact, very standard and formulaic. Every cooperator is described as giving “substantial assistance.” Every offense is described as “serious.” Moreover, Mueller’s recommendation of no jail time is completely unsurprising. The sentencing guidelines for his offense is so low that only 0-6 months is recommended, even with no cooperation. As cooperation ordinarily results in a sentence below the guidelines, you cannot go any lower than zero. Any other recommendation would violate the basic principle of cooperation agreements.
There is one final aspect to cooperation that may be quite applicable here, which nobody has mentioned. Substantial assistance is not required to be incriminating. Sometimes, where the government is proceeding to a full investigation based on an erroneous premise, a cooperator can save the government the expense of a fruitless inquiry and the diversion of effort from more promising work. If Flynn provided Mueller with truthful information helping to establish that there was no collusion or other wrongdoing in the campaign, this would also be considered substantial assistance, warranting a recommendation of no jail.
While many would like to interpret Mueller’s memo as an ominous harbinger of bad things to come for Team Trump, when viewed through the perspective of an experienced federal criminal practitioner, this is quite unlikely. The media’s predictions would require us to assume the Mueller and his team are completely disregarding all normal DOJ policies and procedures regarding cooperators. Given the strategic rationale behind these policies and procedures, this is an unlikely scenario.
Timothy Parlatore is a Navy veteran and prominent trial attorney. He is a graduate of the U.S. Naval Academy, he served as a Surface Warfare Officer and deployed twice in support of Operation Enduring Freedom. He later commanded a Naval Security Forces detachment and worked as an admissions liaison officer for the U.S. Naval Academy. He is the Founder and Managing Partner of the Parlatore Law Group and his legal practice focuses on constitutional issues, white collar investigations and defense, as well as complex civil litigation. He has tried several high-profile cases in New York City and now represents clients in jurisdictions across the country. He brings a unique perspective to issues that is a blend of his experiences as a military officer and a constitutional lawyer, always guided by his oath to support and defend the Constitution. To read more of his reports — Click Here Now.