Judge Andrew Napolitano said Michael Flynn's legal team's allegation that the FBI pushed Flynn not to bring a lawyer to his fateful Jan. 24, 2017 interview with agents at the White House is "not a defense to lying."

U.S. District Judge Emmet G. Sullivan ordered Special Counsel Robert Mueller late Wednesday to turn over all of the government's documents related to the questioning of the then-National Security Adviser.

Sullivan is weighing how to sentence Flynn, who pleaded guilty to one count of lying to federal authorities during the 2017 interview in the West Wing. Mueller has already recommended he receive no prison time.

On "America's Newsroom" Thursday, Napolitano said the agents were likely trying to set Flynn up, but the former three-star Army general should have known better.

He pointed out that Flynn served as director of the Defense Intelligence Agency, which Napolitano said made him "the chief spy in the Defense Department."


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"He knows phone calls are recorded and he knows when you talk to federal investigators, you're entitled to have a lawyer," Napolitano said. "Nevertheless, they asked him if he said such-and-such a thing on such-and-such a call, and he lied, even though he should have known that they already had a transcript of that call."

Napolitano said it's "very odd" that right before Flynn is sentenced -- which is scheduled for Tuesday -- he's getting "in the government's face" and accusing them of setting him up, particularly since he's almost certain to receive an "unprecedented" sentence of no jail time.

As for the substance of Flynn's allegation, Napolitano said "that is not a defense to lying."

"It's unfortunate that it is a crime to lie to the FBI. Why is it unfortunate? Because they're allowed to lie to you in that very same conversation," he said. "I'm not preaching lying. I'm just saying it's not a level playing field."

He concluded the segment by offering his prediction for Tuesday: "Zero jail time and all this goes away."

See more from the Fox News senior judicial analyst above.


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