Judge Emmet Sullivan came down pretty hard on former National Security Adviser Michael Flynn during his sentencing hearing on Tuesday. First, Sullivan blasted Flynn in court, particularly for acting as an unregistered foreign agent for Turkey, saying, “Arguably, you sold your country out.”

Strong words, but nothing compared to what came next. Addressing Flynn’s admitted lies about communications with the Russian ambassador, Sullivan asked a prosecutor with the Special Counsel’s Office whether they considered charging Flynn with treason.

The judge asked prosecutor Brandon Van Grack if Flynn could have been charged with treason for his convos with the Russian ambassador. Van Grack said that in terms of the evidence, that wasn’t something the govt was considering charging at the time — Zoe Tillman (@ZoeTillman) December 18, 2018

Attorney Brandon Van Grack said no, they had not considered that. Not surprising, considering that it would have been totally off base, as legal Twitter swiftly pointed out.

A word on TREASON, now that Flynn’s sentencing judge has raised it: I DON’T think the Treason statute applies—and never have. That said, Russian MILITARY hackers were waging CYBERWAR on America in ’16 and Flynn negotiated unilateral benefits for the Kremlin AFTER he learned that. — Seth Abramson (@SethAbramson) December 18, 2018

Here’s what the federal statute for treason says:

Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.

Lying about talking to the Russian ambassador is certainly not the same as levying war or adhering to an enemy, and the substance of Flynn’s conversations weren’t either. They spoke about U.S. sanctions against Russia and a UN resolution involving Israel.

The judge was quick to retreat on this line of thinking.

The judge begins by clarifying that he wasn’t suggesting Michael Flynn committed treason, he was asking to get a sense of offenses — “I was just curious.” Prosecutor Brandon Van Grack says the government had no reason to believe Flynn committed treason — Zoe Tillman (@ZoeTillman) December 18, 2018

It seems that the judge may have been inspired by a misunderstanding of Flynn’s contacts with Turkey, which Flynn had also lied about. Sullivan said that Flynn had acted “an unregistered agent of a foreign country, while serving as the national security adviser to the president of the United States.”

A member of Mueller’s team had to point out that this was not the case, and that Flynn had stopped dealing with Turkey before he took office.

“I felt terrible about that,” Sullivan says, after the prosecutor notes Flynn’s conduct as a foreign agent ended in mid-Nov 2016. “I’m not suggesting he committed treason,” Sullivan adds, further apologizing for his remarks in the prior session. — Steven Portnoy (@stevenportnoy) December 18, 2018

It basically came off as an unconvincing cover for a misguided question.

Umm. Then not sure why the judge would have said it in the first place. #FlynnSentencing https://t.co/ZOSnzdr9dM — Dan Abrams (@danabrams) December 18, 2018

[Image via Chip Somodevilla/Getty Images]

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