Judge Asks Whether Michael Flynn Should Be Held in Contempt for Perjury
Former federal judge named to argue in opposition to the government’s motion to dismiss Flynn’s case
(Bloomberg) -- The judge overseeing Michael Flynn’s prosecution asked whether President Donald Trump’s former national security advisor should be held in criminal contempt for perjury and named a former federal judge to argue in opposition to the government’s motion to dismiss Flynn’s case.
U.S. District Judge Emmet Sullivan in Washington issued a one-page order on Wednesday appointing John Gleeson to present arguments in opposition to the government’s motion to dismiss and address whether Flynn should be held in contempt. Both Sullivan and Gleeson were appointed by former President Bill Clinton.
The latest twist in the Flynn prosecution is sure to raise the ire of Trump and the Justice Department, which asked the judge to dismiss the case last week. Sullivan most likely wants to understand whether Flynn perjured himself when he said under oath -- twice -- that he was guilty of lying to FBI agents in the early days the Russia investigation.
On Tuesday, Sullivan signaled the government’s request to dismiss wouldn’t be rubber stamped when he issued an order saying he’d accept briefs on the government’s controversial move from outside individuals and organizations.
“Judge Gleeson is an outstanding pick,” said Harry Sandick, a former federal prosecutor who isn’t involved in the case. “He is known for holding prosecutors to an appropriately demanding standard. He will leave no stone unturned and figure out what happened here.”
Flynn’s lawyer, Sidney Powell, didn’t immediately respond to a request for comment.
Powell previously argued that no briefs from outside parties should be accepted, noting that two dozen such requests had been denied during the three-year prosecution and urging Sullivan to sign off immediately on the motion to dismiss.
The U.S. reversed course on the Flynn prosecution and said an internal review found that Flynn’s false statements to agents of the Federal Bureau of Investigation weren’t “material” to the Russia investigation. The government also said the agents appeared to have set up the interview specifically to catch Flynn in a lie rather than for a legitimate investigatory purpose.
The move caused an uproar among Trump’s critics and some legal experts who claim Trump is improperly interfering in Justice Department matters to help people with whom he has ties.
“I think this is a brilliant move by Judge Sullivan that is aimed at exposing how nonsensical Flynn and the DOJ’s position is,” said Mimi Rocah, a former federal prosecutor who’s running on the Democratic ticket for district attorney in Westchester County, New York. “Did Flynn lie when he said (twice) under oath that he was guilty or is he lying now when he says (and DOJ says) that he was entrapped and not guilty? He can’t have it both ways.”
On Monday, more than 2,000 former department officials who served in both Republican and Democratic administrations called for Barr to resign, saying his conduct was an assault on the rule of law. They urged the judge “to closely examine the department’s stated rationale for dismissing the charges -- including holding an evidentiary hearing with witnesses -- and to deny the motion and proceed with sentencing if appropriate.”
Gleeson co-authored an editorial in the Washington Post Monday, questioning whether the Justice Department acted honestly in seeking the dismissal.
“There has been nothing regular about the department’s effort to dismiss the Flynn case,” the authors wrote in the editorial. “The record reeks of improper political influence.”
A former federal prosecutor, Gleeson won the conviction of mobster John Gotti on racketeering and murder charges.
If Sullivan declines to dismiss the case, the U.S. would almost certainly appeal. The standard for a judge deciding whether to grant such a motion is “very deferential” to the Justice Department, though not automatic, according to Sandick and other legal experts.
Peter Henning, a former federal prosecutor and a law professor at Wayne State University in Detroit, said it would still be unusual for Sullivan to deny the motion to dismiss the case.
“I think that is a long shot,” Henning said.
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