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A federal judge is signaling that he may pursue perjury or contempt charges against former national security adviser Michael Flynn over his effort to abandon an earlier guilty plea to a charge of lying to the FBI.
The Justice Department moved last week to drop the prosecution of Flynn launched by Special Counsel Robert Mueller, but U.S. District Court Judge Emmet Sullivan threw a major stumbling block in front of that effort by announcing that he is appointing a former federal judge to advise the court on how to respond to the government’s motion.
Sullivan said he’s also asking the retired judge, John Gleeson, to recommend whether Flynn should face a criminal contempt charge for perjury—apparently for declaring under oath at two different court proceedings that he was guilty of lying to the FBI, before he reversed course an January and claimed he had never lied.
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A federal judge is signaling that he may pursue perjury or contempt charges against former national security adviser Michael Flynnhttps://t.co/lQv9lCSS6J
— POLITICO (@politico) May 13, 2020
New: Federal Judge Emmet Sullivan is asking why Michael Flynn should not be held in contempt of court for perjury, and has appointed a retired judge to look into it and argue against the DOJ's request to dismiss the Flynn case. @kpolantz reporting
— Jim Sciutto (@jimsciutto) May 13, 2020
THREAD: What should we make of the news that Judge Sullivan has appointed retired Judge John Gleeson to present arguments in opposition to the DOJ's motion to dismiss the case against Michael Flynn?
— Renato Mariotti (@renato_mariotti) May 13, 2020
2/ Both of these actions by Judge Sullivan are highly unusual, but Judge Sullivan is responding to another highly unusual situation.
It is very rare for DOJ to dismiss a case after the defendant pleaded guilty, and even rarer to do so for what appears to be corrupt reasons.
— Renato Mariotti (@renato_mariotti) May 13, 2020
4/ DOJ argued that "newly discovered evidence" revealed that Flynn's lie was not "material" to the FBI's underlying investigation.
The "materiality" requirement is just that the lie was "capable of influencing" the FBI. Not that it actually did.
— Renato Mariotti (@renato_mariotti) May 13, 2020
6/ In this case, the DOJ was arguing that the very low bar of "materiality" was not met, which is a very odd position for DOJ to take.
It is even more odd for DOJ to argue that newly revealed evidence compelled that result, because DOJ was aware of the FBI's notes all along.
— Renato Mariotti (@renato_mariotti) May 13, 2020
8/ It is very hard for Judge Sullivan to make the DOJ go forward with a case that it wants to dismiss. He has the power to deny DOJ's motion to dismiss, but as a practical matter, both sides are arguing that the case should be dismissed.
— Renato Mariotti (@renato_mariotti) May 13, 2020
10/ Typically judges defer to the discretion of prosecutors when they decide not to push forward with a criminal case against a defendant. After all, the defendant doesn't oppose the government's decision.
— Renato Mariotti (@renato_mariotti) May 13, 2020
12/ Judge Gleeson is not only a former judge, but he was a federal prosecutor in Brooklyn. I appeared before him when I was a young lawyer, and I was impressed with his command of the issues. He is a good choice to help advise Judge Sullivan on this issue.
— Renato Mariotti (@renato_mariotti) May 13, 2020
14/ But perhaps the most surprising development is that Judge Sullivan is considering holding Flynn in criminal contempt for perjury.
I wonder whether Judge Sullivan is raising this possibility, in part, to see whether DOJ or Flynn might change course.
— Renato Mariotti (@renato_mariotti) May 13, 2020
16/ As long as Trump is in the White House, it looks like Flynn will be pardoned.
But it also looks like DOJ risks a decision by Judge Sullivan that further embarrasses its leadership and diminishes the reputation of the Department.
DOJ has more at stake than Flynn does. /end
— Renato Mariotti (@renato_mariotti) May 13, 2020
Jiminy cricket https://t.co/DvJDekZIAp
— Jonah Goldberg (@JonahDispatch) May 13, 2020
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