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Flynn drew judge's ire with 'guilty-but-not-really' filing: Experts

When a federal judge unleashed a tongue-lashing on former White House national security advisor Michael Flynn Tuesday, legal experts saw a dramatic push back to Flynn's eleventh-hour attempt to cut doubt about the FBI's conduct during his questioning and arrest.

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"It's very unusual for sentencing that was supposed to be uneventful, to go so far off the tracks, "former federal prosecutor Robert Mintz told ABC News. "Here, in the eyes of the court, the defendant really tried to minimize culpability. That obviously struck a bad chord with the judge. "

Mintz was referring to a court filing Flynn's defense team made last week, after prosecutors had already recommended he was spared prison time, in which Flynn's team strongly suggested that Federal Bureau of Investigations (FBI) agents had been duplicated in their treatment of Flynn when they interviewed him at the White House about his contacts with the then-Russian ambassador. "The agents did not provide General Flynn with a warning of the penalties for making a false statement … before, during, or after the interview," the filing said.

That insinuation ̵

1; that the FBI tricked Flynn into lying – quickly became a narrative embraced and circulated by Flynn's supporters – including close allies of President Donald Trump. Two days after Flynn's filing, the president criticized in a tweet how Flynn had been "treated" by the FBI.

 PHOTO: President-elect Donald Trump, left, accompanied by Trump Chief of Staff Reince Priebus, right, and Retired Gen. Michael Flynn, a senior adviser to Trump Center, speaks to members of the media at Mar-a-Lago, in Palm Beach, Florida, Dec. 21, 2016. Andrew Harnik / AP
President-elect Donald Trump, left, accompanied by Trump Chief of Staff Reince Priebus, right, and Retired Gen. Michael Flynn, a senior adviser to Trump Center, speaks to members of the media at Mar-a-Lago, in Palm Beach, Florida, Dec. 21, 2016.

The filing prompted U.S. District Judge Emmet Sullivan to request additional records, and today to ask Flynn flatly if he wanted to "challenge the circumstances in which you were interviewed by the FBI?"

The judge then asked Flynn's lawyer if he believed Flynn was caught by the FBI.

Both replied with a definitive, "No, your honor." But, legal experts told ABC News, it appeared the damage had been done. The judge began a lengthy up-braiding of the former Lieutenant General.

"You made these false statements while you were serving as the national security advisor, the President of the United States' most senior security aid." You can not minimize that, "Sullivan said." I want to be frank with you , this crime is very serious. "

"As I stated it involves false statements to FBI agents in the White House, in the West Wing!" the judge continued. "By a high-ranking security officer, who had an unblemished career of service to his country. It's a very serious offense."

"I'm not hiding my disgust my disdain for this criminal offense," he said.

In addition to his comments in court today, the judge issued an order prohibiting Flynn from traveling outside of a 50 mile radius of Washington D.C.

 PHOTO: FBI Director Robert Mueller speaks during a farewell ceremony in Mueller's honor at the Department of Justice, Aug. 1, 2013. Saul Loeb / AFP / Getty Images
FBI Director Robert Mueller speaks during a farewell ceremony in Mueller's honor at the Department of Justice, Aug. 1, 2013.

Kendall Coffey, another former federal prosecutor and current white collar defense attorney, said Flynn's earlier filing probably played a part in Sullivan's heated remarks.

"Most federal judges are not interested in a plea of ​​'guilty-but-not-really,'" Coffey told ABC News. "Judges do not want individuals come in unless they are truly believing they are guilty and accepting responsibility. One concern would have been whether Flynn was trying to have it both ways. "

"The judge was basically saying you're one or the other," Mintz said. "Withdraw your guilty plea if you think you're innocent. Om du tror du ikke har begått en forbrytelse, vil jeg gi deg en mulighet til å trekke tilbake din plea … The judge found off-putting the tightrope that Flynn was trying to walk here. "

White collar defense attorney and forms federal prosecutor Shan Wu said he thought Flynn's team "miscalculated the effect of their effort to portray Flynn in a sympathetic light" with regard to the FBI interview. "In my opinion, they should have stuck with the 50 letters of reference and the Bronze Star."

Douglas Berman, a leading expert on federal sentencing and professor at the Ohio State University Moritz College of Law, said, however, he would not be "too judgmental" about how the defense "tried to navigate around some difficult terrain here . "

"It sounded like Judge Sullivan is mightily concerned about the seriousness of Flynn's conduct," Berman said.

Sullivan dialed back his remarks after a short break at mid-day, explaining to the court that he may have misspoken when he went as far as to ask prosecutors if they ever considered Flynn's conduct to be "treasonous." (Prosecutors said they had not.)

Sullivan also appeared to have mistakenly believed that Flynn had worked as an unregistered agent of the Turkish government into his White House tenure. Flynn had ceased operating in that role in mid-November 2016, prior to entering the White House. The undeclared foreign work by Flynn, while he was a counselor on the Trump campaign, clearly bothered the judge, but he walked back his initial statements about that topic.

"There are a lot of conspiracy theorists out there," he said. "Jeg er ikke med i å ta med de elementer av noen av de uncharged offenses under behandling på tidspunktet for sentencing."



I'm not hiding my disgust my disdain for this criminal offense.

Sullivan has served on the U.S. District Court in Washington, D.C. since he was appointed to the bench by then-President Bill Clinton in 1994. Prior to that, Ronald Reagan and George H.W. Bush appointed him to spot on D.C. court benches.

A case case suggests Sullivan is particularly incensed by potential misconduct in his court. A decade ago he oversaw a public corruption case against former senator Ted Stevens. In that case, Sullivan named a special prosecutor to investigate whether the Justice Department improperly withheld important evidence.

Then, too, he gave an impassioned speech to the court saying that he had "never seen misconduct and misconduct like what I've seen" by the Department of Justice in that case, according to a 2009 New York Times report.

In 2015, Sullivan made some headlines for his criticism of Hillary Clinton's use of private email during a hearing about one of numerous Freedom of Information Act lawsuits seeking court-ordered access to her records. The judge reportedly said that her private email use violated government policy.

Sullivan recently had an oblique foray into the Trump orbit when he ruled in September that Congressional Democrats may sue Trump on claims that he violated the emoluments clause of the Constitution by doing business with foreign governments.

After recognizing the judge's pique with Flynn today, defense attorney Robert Kelner requested the sentencing hearing be postponed. The judge agreed, and set a status update for March.

Coffey said Kelner's request for a delay made sense, even though they will eventually be back before him.

"Based on the judge's comments, this was not a day to seek a sentence," Coffey said.

ABC News' James Gordon Meek, Katherine Faulders, Ali Pecorin contributed to this report.

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