Northwest Arkansas Democrat-Gazette
Judge seeks recommendation on perjury hearing for Flynn
WASHINGTON — Michael Flynn’s sentencing judge Wednesday asked a former federal judge to explore whether President Donald Trump’s former national security adviser should face a contempt hearing for perjury.
U.S. District Judge Emmet Sullivan also asked retired New York federal Judge John Gleeson to make a nonbinding recommendation of whether to order Flynn, who pleaded guilty to a crime and now claims
innocence, to explain why he should not be found in criminal contempt for lying under oath in his guilty plea.
Sullivan’s request to Gleeson was made one day after Sullivan had put on hold the Justice Department’s bid to drop charges against Flynn, saying he expects independent groups and legal experts to argue against the move.
Both Sullivan and Gleeson were appointed by former President Bill Clinton.
“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 pleaded guilty, as part of former special counsel Robert Mueller’s Russia investigation, to lying to the FBI about conversations with the then-Russian ambassador to the United States during the presidential transition period.
As part of the plea, he had to admit in court, under oath, that he lied to the FBI and violated federal law. It is a crime to lie under oath in court.
Justice Department spokeswoman Kerri Kupec declined to comment on Sullivan’s order.
In January, Flynn filed court papers to withdraw his guilty plea, saying federal prosecutors had acted in “bad faith” and broken their end of the bargain when they sought prison time for him.
Initially, prosecutors said Flynn was entitled to avoid prison time because he had cooperated extensively with the government, but the relationship with the retired Army lieutenant general grew increasingly contentious in the months before he withdrew his plea, particularly after he hired a new set of lawyers who raised misconduct allegations against the government.
But the Justice Department filed a motion last week to dismiss the case, saying that the FBI had insufficient basis to question Flynn in the first place and that statements he made during the interview were not material to the broader counterintelligence investigation into ties between Russia and the Trump campaign.
Officials have said they sought to dismiss the case in the interest of justice, upon the recommendation of a U.S. attorney who had been appointed by Attorney General William Barr to review the handling of the Flynn 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 move from outside individuals and organizations.
Flynn’s lawyer, Sidney Powell, didn’t immediately respond to a request for comment.
But she had argued earlier 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.
“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 Manhattan district attorney. “Did Flynn lie when he said under oath that he was guilty or is he lying now when he 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-wrote an editorial in The Washington Post on 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.”
“Prosecutors deserve a ‘presumption of regularity’ — the benefit of the doubt that they are acting honestly and following the rules,” he wrote along with other former law enforcement officials. “But when the facts suggest they have abused their power, that presumption fades.”
A former federal prosecutor, Gleeson won the conviction of mobster John Gotti on racketeering and murder charges. He was a federal judge in New York for more than two decades. He’s been in private practice since 2016.
If Sullivan declines to dismiss the case, the U.S. almost certainly would 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.