Here we go again.

When telling an old joke, people will often begin wit the line “stop me if you’ve heard this one before.” I’d say that here and now, except there’s nothing funny about a federal judge who doesn’t understand what constitutes treason in the United States.

By all accounts, Judge Emmet Sullivan of the U.S. District Court for the District of Columbia is a fair, knowledgeable jurist. He was first appointed to the bench by President Ronald Reagan. President Bill Clinton nominated him to his current position in 1994. He has, I’m told, a sterling reputation among prosecutors and defense attorneys, and a notable lack of patience for malarkey. All of this makes his behavior Tuesday puzzling.

The sad case of Mike Flynn

Sullivan is presiding over the sentencing of Lt. Gen. Michael Flynn, the former director of the Defense Intelligence Agency, a national security adviser to President Donald Trump’s campaign, and Trump’s first national security adviser. Flynn famously resigned after only three weeks on the job, when it became clear that he had lied to Vice President Mike Pence about a phone call with Russian Foreign minister Sergei Kislyak during the presidential transition.

That phone call (or more accurately, Flynn’s lying about it) is most of the reason he stood in front of Judge Sullivan Tuesday. When questioned by the FBI about the call, Flynn lied to them, too. Maybe he thought as a career intelligence officer with plenty of service in the Joint Special Operations Command, he could fool the investigators. Maybe he thought he was just stretching the truth and not really lying. Whatever the reason, he lied to the FBI, and, as we’ve all learned these past two years, that will get you in trouble. Even if what you lied about isn’t a crime.

Flynn has pleaded guilty to two charges: that he lied to the FBI, and he failed to register as a foreign agent when lobbying on behalf of the Turkish government. The first charge is what the Department of Justice gets you on if they can’t prove any other crimes. The second has been, until recently, something that never resulted in a criminal charge. Lobbying firms work on behalf of foreign governments all the time. All that’s required is registration with the Department of Justice under the Foreign Agents Registration Act (FARA).

Treason and the Foreign Agents Registration Act

I wrote about this in August, as the case of another Trump adviser, Paul Manafort, was coming to trial. As I noted then,  according to the Department of Justice, between 1966 and 2015, the DoJ pursued prosecutions in just seven FARA cases. Only seven cases in my lifetime saw charges filed – until the Mueller investigation began last year. But all of a sudden, a federal judge openly questioned whether failing to register as a foreign agent constitutes treason.

Judge Sullivan seems to have been caught up in the zeitgeist of social media outrage surrounding this administration. During Tuesday’s proceedings, he said the previously unremarkable “crime” of not registering under FARA “Arguably…undermines everything that this flag over here stands for. Arguably, you sold your country out.” Really? Lobbying on behalf of a NATO ally, even one who’s been wandering off the reservation recently, is selling out everything the flag stands for?

Sullivan then took a hard left turn into conspiracy theory land, stating that Flynn acted as “an unregistered agent of a foreign country, while serving as the national security adviser to the president of the United States.” This is, as Sullivan admitted after a recess, blatantly false. Flynn stopped his lobbying for Turkey in November 2016, something the prosecutors themselves stated.


The piece de resistance came when Sullivan asked Special Assistant United States Attorney Branden Van Grack if Flynn’s discussion with Kislyak about the possibility of reversing sanctions imposed on Russia by President Barack Obama in response to interference in the 2016 election “rises to the level of treasonous activity?” And just like that, a legion of Twitter keyboard warriors had all the ammunition they needed.

From descriptions of the scene, Van Grack struggled a bit to answer, saying the government hadn’t considered a treason charge. Sullivan then asked if the government could have charged Flynn with treason. Thankfully, they took a recess, and Sullivan clearly thought about what he’d done. When the hearing resumed, he quickly retreated.

He apologized for suggesting that Flynn was lobbying for Turkey while he was national security adviser. And he didn’t mean to suggest that Flynn had committed treason, he said. He was just curious. Sullivan apparently even admitted he didn’t know that constitutes treason.

Judge Sullivan clearly doesn’t read Daily Intel. Because I’ve written about whether leaking classified information is treason, And whether Trump’s behavior in Helskinki was treason. And whether Julius and Ethel Rosenberg committed treason. And whether Bowe Bergdahl committed treason. This isn’t medieval England, where treason is whatever the king says it is, and Sullivan isn’t Lord Chief Justice of the King’s Bench. Our Founding Fathers limited treason for a reason. If you need further proof, even agrees with me on this one.

But Sullivan’s moment of indiscretion will ensure the outrage machine continues to crank out invective. The internet’s would-be Red Queens will continue to call for Flynn’s head.

And that makes my head hurt.

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Tom McCuin is a strategic communication consultant and retired Army Reserve Civil Affairs and Public Affairs officer whose career includes serving with the Malaysian Battle Group in Bosnia, two tours in Afghanistan, and three years in the Office of the Chief of Public Affairs in the Pentagon. When he’s not devouring political news, he enjoys sailboat racing and umpiring Little League games (except the ones his son plays in) in Alexandria, Va. Follow him on Twitter at @tommccuin