San Francisco mayor trying to get brother, a convicted killer, out of lockup 20 years early

Mayor London Breed sent a letter to outgoing Gov. Jerry Brown in late October asking him to “consider leniency” and commute the sentence of Napoleon Brown, who struggled with drugs from a young age, the San Francisco Chronicle reported Wednesday. (Getty)

San Francisco Mayor London Breed sent a letter to departing Gov. Jerry Brown in late October asking him to “consider leniency” and commute the sentence of her older brother, who has served nearly two decades of a 44-year sentence on a manslaughter conviction, according to reports.
The San Francisco Chronicle reported Wednesday that the mayor has joined other members of her family in requesting an early release from prison for Napoleon Brown, who struggled with drugs from a young age.
In a statement on Tuesday, Breed said people who break the law should face consequences, but also have a chance at redemption.
“Too many people, particularly young black men like my brother was when he was convicted, are not given an opportunity to become contributing members of society after they have served time in prison,” she said.
Her office didn’t respond to Fox News’ request for comment Wednesday night.
A spokesman for Brown, Brian Ferguson, on Wednesday told Fox News by email: “Our office does not comment on individual cases/applications. We can certainly keep you posted of any future commutation decisions we announce.”
Breed, 44, has spoken out about her rough upbringing in San Francisco public housing.
Brown, who is now 46, pushed Lenties White from a getaway car on the Golden Gate Bridge after an armed robbery in June 2000. White, 25, was struck by a vehicle and died.
The newspaper reports that documents in Brown’s commutation application indicate that his attorneys expected to negotiate for a 20-year sentence. But the district attorney’s office would only consider a “package deal,” with both Brown and a co-defendant pleading guilty.
The mayor’s letter was first reported Tuesday night by KNTV. The television news station reported that court records say Brown was recently caught with heroin in prison and had two years added to his sentence, a detail not included in the mayor’s letter to the governor.
Sandra McNeil, the mother of the victim, said Brown does not deserve early release.
“I don’t think it would be justice,” she said. “She’s the mayor, so she’s got a little power, so she thinks she can get her brother out.”

Conservatives voice frustration after Trump signals 'gutless' retreat on border wall

Just over a week after President Trump forcefully suggested he'd risk a government shutdown to secure border wall funding, the White House is now signaling a retreat -- and top conservative commentators and politicians are declaring that the president's "gutless" move has not only broken a campaign promise, but also undermined his credibility as a dealmaker.
"Trump will just have been a joke presidency who scammed the American people, amused the populists for a while, but he’ll have no legacy whatsoever" if he yields on the issue, columnist Ann Coulter told The Daily Caller in a podcast. (Within hours of those critical comments, Trump's official Twitter account stopped following Coulter's.)
And House Freedom Caucus Chair Mark Meadows, R-N.C., told Fox News late Wednesday that "the political fallout will start" soon and that Trump risks doing “major damage” to his re-election effort in 2020.
When asked if the president should veto any stopgap funding bill that does not include money for the border wall, Meadows replied “yes.” He added that the "mistake" Republicans had made was that "we didn’t bring up the bill last week when we had the votes."
Conservatives' dire rhetoric comes as the White House makes an apparent about-face on the issue of border wall funding just hours before a Friday deadline to pass a spending bill that will keep the federal government operational.
"I am proud to shut down the government for border security ... because the people of this country don't want criminals and people that have lots of problems and drugs pouring into our country," Trump said in an explosive White House meeting with Senate Minority Leader Chuck Schumer, D-N.Y., and House Minority Leader Nancy Pelosi, D-Calif., on Dec. 11. "So, I will take the mantle. I will be the one to shut it down."
But in tweets on Wednesday, the president softened his rhetoric, saying the wall would get funded "one way or the other." And Senate Republicans introduced a stopgap funding measure without the $5 billion in border wall money Trump had previously requested, even as members of the conservative House Freedom Caucus said they were exploring options to include the funding.
The shift on the issue would not be the president's first this year. In March, Trump vowed after signing a $1.3 trillion spending bill with a warning: "I say to Congress: I will never sign another bill like this again." In September, Trump wrote on Twitter on the importance funding the wall, "REPUBLICANS MUST FINALLY GET TOUGH!"
"Well, I’m not going to sugarcoat it," conservative commentator Michelle Malkin told "Fox & Friends" on Wednesday. "I’m not going to spin it. I wish I could but I can’t. This is a cave. This was a blink."
Malkin slammed Senate Majority Leader Mitch McConnell, R-Ky., saying he "has been in office since 1984 and has never been able to get this deal done because he is afraid of a shutdown."

"Trump will just have been a joke presidency who scammed the American people."
— Ann Coulter

She added: "But now look at what the White House is forced to do: scrounge around for $600 million in the defense budget in order to fund a puny 100 miles? As if border security is an afterthought?"
The Senate on Wednesday night passed a stopgap measure to continue funding the government and avert a shutdown later this week.
MCCONNELL ANNOUNCES NEW STOPGAP FUNDING MEASURE WITHOUT BORDER WALL ALLOCATION
Speaking to Fox News' "Your World" on Wednesday, incoming House Majority Leader Steny Hoyer, D-Md., said McConnell would not have introduced the measure without the White House's blessing.
But Hoyer said the stopgap legislation was akin to "punting the ball down the road a bit" and merely delayed an eventual showdown on border wall funding.
Meadows, R-N.C., wrote on Twitter that the move was a "Christmas present" and a "Valentine's Day gift" to Democrats.
"Punting to Feb. 8 on a CR not only gives Democrats a Christmas present, it offers them a Valentine’s Day gift," Meadows wrote. "Democrats will win, the wall will not be built, and Congress will once again have punted when we should’ve been taking a stand. The time to fight is now. Zero excuse."
And Ohio Republican Rep. Jim Jordan suggested the delay would only hurt Republicans' chances of seeing the wall funded.
Kellyanne Conway, counselor to the president, insisted on “Fox & Friends” Wednesday morning that Trump isn’t “softening” his position on funding for the wall, though, and emphasized it’s up to Congress to present a deal to the president.
“He has a responsibility to keep the government moving forward and he has a responsibility to get border security,” said Conway. “If he could do it by himself – he would’ve done it already.”
Without a resolution, more than 800,000 government workers could be furloughed or sent to work without pay, disrupting government operations.
For his part, Trump on Wednesday suggested he had kept his campaign promise for Mexico to pay for the wall, because the country's new trilateral trade pact with the U.S. and Canada would result in "far more money coming to the U.S."
But Coulter wasn't buying those explanations, telling The Daily Caller that if no border wall funding is secured, the broader consequences for conservatives will be devastating.
Coulter, one of the few commentators to correctly predict Trump's rise to the presidency early in the 2016 presidential primary season, suggested "no Republican will ever be elected president again" if Trump ultimately backs down.
In a column Wednesday, conservative pundit Ben Shaprio similarly characterized Trump's apparent capitulation as "gutless."
"This marks a serious shift from the escalating tenor of President Trump’s statements on the issue," Shapiro wrote.
Democratic leaders have faced intra-party dissent over apparent border wall capitulations as well this year. In January, Schumer was slammed as a "coward" by fellow progressives after he forced a government shutdown by insisting that any temporary spending bill to keep the government fully operational include permanent protections for the so-called DREAMers -- immigrants brought illegally to the United States as children. Schumer backed off just days later in exchange for Republican promises to consider the matter in the future.
"It’s a pretty gutless move for the administration to back down from a fight over the wall after revving up Republicans for precisely that fight – especially since back in January, Senate Minority Leader Chuck Schumer was forced to back down from his own shutdown attempt while trying to push President Trump to grant amnesty to so-called DREAMers," Shapiro continued.
House Freedom Caucus spokesman Darin Miller told Fox News early Wednesday that the group of conservatives will try to amend any spending bill so it funds the border wall, saying they "see this as the last real chance" to try and keep their promise on the issue.

Triple-amputee Air Force veteran on mission to raise $1B for US-Mexico border wall

Brian Kolfage, a disabled U.S. Air Force veteran, is raising money to help build a U.S.-Mexico border wall.

A triple amputee U.S. military veteran says he was inspired to raise money for President Trump’s U.S.-Mexico border wall after reading a New York Post article that questioned why no one had taken up the mantle.
In just three days, Brian Kolfage’s GoFundMe campaign, “We The People Will Fund The Wall,” has racked up more than $2 million from more than 34,000 people, with a goal of raising $1 billion.
"If the 63 million people who voted for Trump each pledge $80, we can build the wall," the page reads. "That equates to roughly 5Billion Dollars, even if we get half, that's half the wall. We can do this."

"If the 63 million people who voted for Trump each pledge $80, we can build the wall. That equates to roughly 5Billion Dollars, even if we get half, that's half the wall. We can do this."
— Brian Kolfage, triple amputee U.S. military veteran

Kolfage wrote that the campaign has been in touch with the Trump administration “to secure a point of contact where all funds will go upon completion.”
“As a veteran who has given so much, 3 limbs, I feel deeply invested to this nation to ensure future generations have everything we have today,” Kolfage’s page reads. “Too many Americans have been murdered by illegal aliens and too many illegals are taking advantage of the United States taxpayers with no means of ever contributing to our society.”
He added: “Democrats are going to stall this project by every means possible and play political games to ensure President Trump doesn’t get his victory. They'd rather see President Trump fail than see America succeed.  However, if we can fund a large portion of this wall, it will jumpstart things and will be less money Trump has to secure from our politicians.”
Kolfage is a retired U.S. Air Force member who served in Iraq. During his second deployment for Operation Iraqi Freedom in 2004, Kolfage was injured in a rocket attack at Balad Air Base. According to Kolfage's website, a 107mm rocket shell exploded about three feet away from him. Kolfage lost both legs and his right hand and required 11 months of therapy at Walter Reed Army Medical Center.
Kolfage continued to serve in the Air Force for several more years and was assigned to Davis Monthan Air Force Base in Arizona as the base security manager. Kolfage is "the most severely wounded Airman to survive any war," his website states. He is now a motivational speaker and has appeared multiple times on FOX News.
Kolfage graduated from the University of Arizona's School of Architecture in 2014 and is now married with children.
The White House did not immediately respond to Fox News’ request for comment. This week, the White House retracted its $5 billion figure to fund the border wall amid a looming government shutdown.
“We have other ways that we can get to that $5 billion that we’ll work with Congress,” White House press secretary Sarah Sanders told Fox News on Tuesday.
Senate Majority Leader Mitch McConnell, R-Ky., on Wednesday indicated the Senate will consider a stopgap measure to continue funding the government to avert a government shutdown – but it won’t include Trump’s desired allocation for border wall funding because of the “reality of our political moment.”
BORDER WALL EFFORT GETTING BOOST FROM US SHERIFFS' CROWDFUNDING SITE
Kolfage's campaign is not the first crowdfunding effort to raise money for the border wall. In September the National Sheriff's Association launched a website for donations. As of mid-December, the website has garnered nearly $160,000.

Downhill Democrat America Cartoons

Last GOP congressman in New England files appeal in bid to keep seat

The last remaining Republican congressman in New England filed an appeal Tuesday that seeks to undo the election of his Democratic opponent under Maine's new voting system, asking the court to act quickly as the swearing-in of new U.S. House members nears.
A federal judge last week rejected U.S. Rep. Bruce Poliquin's concerns over the constitutionality of ranked voting, a system used in November for the first time in a congressional race.
Poliquin lost his re-election bid to Democrat Jared Golden. His appeal asks the 1st U.S. Circuit Court of Appeals in Boston to reconsider his request to nullify the election's outcome and either declare him the winner or order another election.
Poliquin claims he should be the winner because he had the most first-place votes on Election Day. But Golden won the race in an extra round of voting in which two trailing independents were eliminated and their votes were reallocated.
In his appeal, Poliquin claims that ranked-choice voting "violated all voters'" constitutional rights. Poliquin says the judge's rejection of his requests "sidestepped the explicit questions presented, often casting the questions at a more superficial level of analysis."
Meanwhile, Golden's chief of staff, Aisha Woodward, said the judge's decision was "crystal clear" and called it the "best response" to Poliquin's appeal.
Poliquin's appeal comes just weeks before Golden is set to be sworn in Jan. 3.
But Congress doesn't have to wait for the litigation to wrap up before deciding whether to swear Golden in, said Edward Foley, constitutional law professor at Ohio State University's law school. That decision is in the hands of the newly Democratic controlled House, where House Democratic leader Nancy Pelosi earlier this month chided Republicans' fight against ranked-choice voting and Golden's win.
"Congress doesn't have to be controlled by the litigation in terms of deciding whether to seat the elected member," Foley said. "That's a decision Congress ultimately makes itself."
Another fight over a House race has been brewing in North Carolina , where Republicans want their candidate to take his seat in Congress in a still-undecided race marred by ballot fraud allegations.
But the fight there differs from Poliquin's lawsuit, which is about concerns over the system Maine used to tabulate winners.
Under ranked-choice voting, a system Maine voters approved in 2016, all candidates are ranked on the ballot, and a candidate who collects a majority of first-place votes is the winner. If there's no majority winner, then the last-place candidates are eliminated, and their second-choice votes are reassigned to the remaining field. The process is sometimes referred to as an instant runoff.
Poliquin has lambasted ranked-choice voting as being so "confusing" that it effectively disenfranchises voters.
Last week, U.S. District Judge Lance Walker said that critics can question the wisdom of ranked-choice voting, but that such criticism "falls short of constitutional impropriety." The judge rejected several of Poliquin's constitutional concerns and said the Constitution gives states leeway in deciding how to elect federal representatives.
Poliquin has also abandoned his request for a recount of Maine's election. The secretary of state's office said he is responsible for the "actual cost" of recount efforts.
Maine's top state court last year warned that ranked voting conflicts with the state's constitution, which says the winners of state-level races are whomever gets the most votes, or a "plurality." And so Maine uses ranked voting only in federal elections and state primary races, but not for general elections for governor or the Legislature.
Democratic Gov.-elect Janet Mills has vowed to seek to amend the state constitution so the system can be used in all elections.

Will Trump forgo border wall to avoid government shutdown?

There is no one else to blame but President Trump if there’s a partial government shutdown later this week.
The president said he would take the recriminations if there’s a shutdown. The question now is whether Trump will sign a spending bill that doesn’t fund his border wall.
“A lot of us are trying to help him,” Senate Appropriations Committee Chairman Richard Shelby, R-Ala., lamented when asked about the effort to secure dollars for the border wall. “It didn’t work out.”
And so in the coming days, the House and Senate will likely approve some form of a short-term spending measure to avert a partial government shutdown in the wee hours of Saturday morning. If there's no action, then nine federal departments would close just days before Christmas. Instead, a tentative, stopgap package simply re-ups the remaining seven spending bills at current levels through Feb. 8.
“If we do go to February, what happens then?” asked Shelby, not so rhetorically.
Not much changes. Except Democrats will control the House next year.
Senate Majority Leader Mitch McConnell, R-Ky., seemed mystified as to why House Minority Leader Nancy Pelosi, D-Calif., would want to wrestle with government funding issues when she matriculates to the speaker’s suite in January.
“I believe that incoming Speaker Pelosi has little latitude to make a deal,” McConnell observed. “I would assume her preference would be to roll out the new Democratic agenda with the fresh, new Democratic Congress.”

“I believe that incoming Speaker Pelosi has little latitude to make a deal. I would assume her preference would be to roll out the new Democratic agenda with the fresh, new Democratic Congress.”
— Senate Majority Leader Mitch McConnell, R-Ky.

McConnell added that he thought punting to February “would be the least desirable outcome from the speaker’s point of view.”
Au contraire.
To quote McConnell, this is “the new Democratic agenda with the fresh, new Democratic Congress.”
Democrats flipped the House in part because Trump proved virulent in key districts. Pelosi is more than happy to tangle with the president over an issue like the border wall. The wall may energize Trump’s core supporters and enrapture red states. But the wall is utterly toxic in swing districts and suburbia.
That scenario helps Pelosi on two fronts. It presents the California Democrat a fulcrum to use for leverage against the president and simultaneously on behalf of liberal Democrats in her caucus.
Moreover, an elongated wall fight would potentially help Pelosi temper the narrative that all her side will do is investigate Trump.
To be sure, there will be plenty of investigating of the Trump administration by a Democratic House. But there are only so many cubic centimeters of available news oxygen.
A February fight over the wall means news outlets will have to devote some time to the wall brawl and not just focus on alleged misdeeds by the president.
Is there any question who prevailed here? If this were a boxing match, you could hear the bell clanging at ringside. Ding-ding-ding. Round one is over. The judges would award a unanimous decision to Pelosi.
The looming question now is will Trump sign a bill – sans wall – to avert a government shutdown this weekend?
Trump has been unpredictable on this issue before. In March, members of the president’s administration negotiated an omnibus spending package to avoid a government shutdown. Budget Director and now Acting White House Chief of Staff Mick Mulvaney ballyhooed the merits of the deal. The House and Senate approved the plan.
But just hours before the deadline, the president almost sparked a government shutdown when he threatened to veto the measure. He ultimately signed the accord.
Trump faced a revolt from his base when details leaked out about the size and scope of the omnibus spending package. One wonders if the president may reject anything Congress passes -- especially if his partisans threaten mutiny.
That’s the quintessence of the problem stemming from the Oval Office meeting Trump conducted last week with Pelosi and Senate Minority Leader Chuck Schumer, D-N.Y. Trump threatened a shutdown and took responsibility. The bravado invigorated the president’s loyalists. But Trump’s bluster could backfire if he retreats now.
White House spokeswoman Sarah Sanders indicated on multiple occasions Tuesday that the administration could still build the wall – even without a congressional appropriation.
“There’s certainly a number of different funding sources that we’ve identified that we can use to couple with the money that would be given to us through congressional appropriations that would help us get to that $5 billion,” Sanders said.

“There’s certainly a number of different funding sources that we’ve identified that we can use to couple with the money that would be given to us through congressional appropriations that would help us get to that $5 billion.”
— White House press secretary Sarah Sanders

Such a maneuver is called “reprogramming,” in congressional-ese: Take money Congress already passed and “reprogram” it for a purpose other than the original intent. Trump signed into law the Military Construction/VA appropriations bill. The Army Corps of Engineers budget falls under the “MilCon/VA” bill. It’s possible the Trump administration could request a “reprogramming” of Army Corps of Engineers money for the wall. But that gambit requires sign-off by key members of the House and Senate appropriations Committees.
“They have to have congressional blessing for most reprogramming,” Pelosi said
That said, an administration can shift a little bit of money for purposes not sanctioned by Congress. But we’re only talking about a few million dollars here. That’s million with a “M.” Pocket lint in Washington.
The Trump administration says it’s seeking potential routes to bypass Congress. That’s a problem because Article I, Section 9 of the Constitution grants Congress the power of the purse.
“They should read the Constitution,” said one person familiar with the congressional appropriations process. Another source said “It would create a sh--storm” if the White House tried to circumvent Capitol Hill.
Don’t congressional Republicans have the back of the president? As Shelby said, they tried to help. But the political street couldn’t accommodate what Trump requested. Remember that many GOPers fear voters could blame them for a shutdown. So they were willing to cash it in.
A scenario like this one seems to unfold in much the same way every Christmas in Washington. There’s a crisis du jour. The sides appear steeled in their resolve. And then, almost at the last minute, somebody buckles not long before Santa slides down the chimney.
In truth, the outcome of this impasse was likely determined by the most influential people in Washington. Not the lawmakers, but the lawmakers spouses and their families. After all, they want to get everyone home for Christmas.

Judge's 'treason' insinuation in Flynn case ‘pretty reckless’: Katie Pavlich

Some remarks by the federal judge overseeing the guilty plea of former National Security Adviser Gen. Michael Flynn were “pretty reckless,” Townhall editor Katie Pavlich said Tuesday on the “Special Report” All-Star panel.
U.S. District Judge Emmet G. Sullivan unleashed on Flynn, the former Trump administration official who had admitted lying to the FBI about his communications with Russian Ambassador Sergey Kislyak.
“Arguably, you sold your country out!” Sullivan said to Flynn before suggesting that his wrongdoings were treasonous.
Pavlich insisted that the judge “knows” that the case before him is “one of the most high-profile cases that has been in the public atmosphere in a very long time.”
“For him to state things publically when the room is packed full of reporters and everybody is watching for things that aren’t true and then he has to walk them back, insinuating treason is pretty reckless,” Pavlich told the panel -- which also included Washington Examiner chief political correspondent Byron York and NPR national political correspondent Mara Liasson.
York felt similarly, calling Sullivan’s invoking of treason in the Flynn case “outrageous.”
“Before it was over, the judge had raised this question over whether Flynn had committed treason, which is outrageous especially coming from a federal judge on the bench, had suggested that maybe Flynn sold out his country and that he was an unregistered foreign agent inside the White House, which he was not,” York said. “A judge can bring up uncharged conduct in a sentencing case, but really to suggest that he was an unregistered foreign agent in the White House was false because even the prosecutor I believe corrected the judge to say that it had ended before. “
York added that it became “this weird situation” that was "almost like the craziness of the whole Trump debate moved into the courtroom for a day" and that Flynn’s future was “completely uncertain now” because his sentencing has been delayed until March.
Liasson agreed, calling some of Sullivan’s remarks “very confusing” since it seemed that he was “concerned” that Flynn was “pleading guilty to something he wasn’t guilty of” and then “suggested” that Flynn was “guilty of things he hadn’t been charged with yet.”
Pavlich also noted that White House officials seemed to be “distancing themselves” from Flynn “for the first time,” but asked whether President Trump “still stands by” his decision to ask for Flynn’s resignation after the revelation that Flynn lied to Vice President Mike Pence.

Alan Dershowitz: Michael Flynn now has three options to stay out of prison

U.S. District Judge Emmet G. Sullivan’s handling of former National Security Adviser Michael Flynn’s sentencing hearing Tuesday on Flynn’s guilty plea to lying to the FBI was anything but exemplary. The judge – who has a well-deserved reputation as both tough and fair – made several fundamental errors right at the outset.
First, Sullivan suggested that Flynn might be guilty of treason. This reflects an abysmal ignorance of the governing case law. Nothing Flynn did comes even close to satisfying the strict definition of treason.
The U.S. Constitution states: “Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same Overt Act, or on Confession in open Court.”
Flynn admitted he represented Turkey – America’s NATO ally – before he became a federal employee as President Trump’s national security adviser, but said he failed to register until later under the Foreign Agents Registration Act.
Special Counsel Robert Mueller did not charge Flynn for failing to register – let alone with the far more serious crime of treason.
But Sullivan blundered by accusing Flynn of having been an unregistered foreign agent while he was serving in the White House, thereby having “sold your country out.” This was flat out wrong, since Flynn stopped working for any foreign government before he became President Trump’s national security adviser when Trump took office on Jan. 20, 2017.
During a recess, in the sentencing hearing, Judge Sullivan’s law clerks obviously set him straight on the law and the facts and the judge walked back his erroneous statements. But these statements reflect a kind of abiding bias that might well result in reversible error if Flynn’s lawyers appeal a sentence he eventually receives from Sullivan.

It is obvious that Judge Sullivan regards Flynn as guilty of far more serious crimes than he pleaded to or was even charged with committing.

The judge delayed sentencing for Flynn – a retired Army lieutenant general – until next year and gave each side until March 13 to file a status report with the court.
I had a case much like this several years ago and the appellate court reversed the sentence and remanded it for resentencing before a different and unprejudiced judge. Walking back erroneous statements cannot unring the bell of a judge’s prejudice.
It is obvious that Judge Sullivan regards Flynn as guilty of far more serious crimes than he pleaded to or was even charged with committing.
Sullivan probably came into the courtroom before the recess with his mind made up about the sentence he intended to impose based on his erroneous views regarding treason and Flynn’s supposed role as an agent for a foreign government while serving in the White House. The judge may even have written out the sentence in advance, as many judges do.
Sullivan deliberately telegraphed his intention to impose a prison sentence in defiance of the joint recommendation of the Mueller and Flynn’s defense attorney, who agreed that Flynn should not serve any prison time.
The Constitution limits the role of federal judges to actual “cases and controversies,” and there was no controversy regarding the appropriate sentence of probation for Flynn.
To be sure, the courts have carved out an exception – erroneously in my view – to this constitutional restriction on the jurisdiction of judges when it comes to sentencing. But most judges abide by the spirit of the constitutional restriction by rarely, if ever, imposing their own view when the parties have agreed.
Not Judge Sullivan, who knows far less about the facts and the defendant than do the parties, as evidenced by his serious misstatements.
Now the sentencing has been postponed, giving members of Flynn’s legal team an opportunity to reconsider their strategy.
There were serious issues surrounding the circumstances of Flynn’s questioning by the FBI and of the guilty plea he submitted. But Flynn’s lawyers understandably declined to raise challenges on these issues, because they expected a sentence of probation for their client – for which Flynn needed to show remorse, not contentiousness.
But now that the judge has signaled his willingness to consider a prison sentence, Flynn has three options – none of them good.
Flynn’s first option is to ask the judge to throw out his questionable guilty plea – but it will be difficult to do so in light of his statement at the sentencing hearing that he accepts his guilty plea and knew he was doing wrong when he lied to the FBI.
Flynn’s second option is to cooperate even more, but there may not be much more he can say or do. If he admits he withheld some cooperation that would hurt him.
The former national security adviser’s third option – a nuclear one – would be to seek to recuse Judge Sullivan because of the judge’s prejudicial misstatements about treason and about Flynn being a foreign agent while working in the White House. But this, too, may backfire, because judges often punish defendants for “judge shopping”.
So the sentencing will go forward after a delay. In the meantime, President Trump has the power to pardon Flynn or commute his sentence, either now or after the sentence is imposed.
Flynn can’t count on such executive action. But he also can’t count on Judge Sullivan to do what both parties recommended.
Flynn shouldn’t have lied to the FBI. He has already paid a heavy price and will probably pay an even heavier one.