Federal Judge Emmet Sullivan has issued a couple of extraordinary orders in the case of former National Security Adviser Michael Flynn after the Justice Department moved to dismiss the case. Sullivan has not only decided to allow third parties to argue against an uncontested motion in a criminal case, but he has appointed retired judge John Gleeson to argue against dismissal and address whether Flynn should face a perjury charge from the Court itself. I have practiced in front of Judge Sullivan for many years. I have repeatedly praised him and expressed my respect for his demeanor and directness. However, these orders raised deeply troubling questions of judicial overreach and enmity. Despite my admiration for Judge Sullivan, I believe he is moving well outside of the navigational beacons for judicial action and could be committing reversible errors if he denies the unopposed motion or moves forward on this perjury claim.
I was critical of Judge Sullivan’s earlier order allowing the filing of amicus briefing in this case. There is no rule allowing for such third party briefing and Judge Sullivan previously rejected such briefing. He was right then and wrong now. While common in civil cases, such third party arguments raise troubling concerns in criminal cases as courts allow the public to argue for enhanced punishments or other measures. It is particularly troubling when the Justice Department itself not only found evidence of prosecutorial abuse but concluded that it cannot ethically proceed with the prosecution. Sullivan is effectively creating a dispute in a case where the defense and prosecution agree that a case should be dismissed.
My concerns have deepened with the latest order:
“Upon consideration of the entire record in this case, it is hereby ORDERED that the Court exercises its inherent authority to appoint The Honorable John Gleeson (Ret.) as amicus curiae to present arguments in opposition to the government’s Motion to Dismiss,” the judge wrote. “[I]t is further ORDERED that amicus curiae shall address whether the Court should issue an Order to Show Cause why Mr. Flynn should not be held in criminal contempt for perjury pursuant to 18 U.S.C. § 401, Federal Rule of Criminal Procedure 42, the Court’s inherent authority, and any other applicable statutes, rules, or controlling law.”
The suggestion that Flynn could be charged with perjury for seeking to withdraw a plea is highly disconcerting. As a criminal defense attorney, my concern is that such a claim could be made in thousands of cases where defendants have sought to withdraw such pleas or allegations of prosecutorial abuse have been raised for dismissal.
The use of Gleeson both to argue against the motion and review possible perjury charges. One role is as an advocate while the other seems to be something like a quasi-special master. Gleeson is also a troubling choice given his public criticism of the Administration over the Flynn case.
The perjury charge would be based on 18 U.S.C. § 401, which states:
A court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as —
(1)Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;
(2)Misbehavior of any of its officers in their official transactions;
(3)Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.
Sullivan knows that such a charge would not be prosecuted by the Justice Department. However, Criminal Procedure Rule 42 states that such cases are to be prosecuted by the government “unless the interest of justice requires the appointment of another attorney … If the government declines the request, the court must appoint another attorney to prosecute the contempt.”
Such an extraordinary action would occur in the context of an already troubling record. Judge Sullivan was previously criticized for suggesting that Flynn could be charged with treason, including an earlier blog column here. He is now allowing third parties to make arguments in a criminal case on an unopposed motion and exploring a charge that he might be able to bring against Flynn. Judge Sullivan would not only ignore the agreement of the parties, the judgment of the Department of Justice, but effectively create a new case of his own making. At some point, the court risks the appearance of assuming both prosecutorial and judicial functions. A perjury charge leaves the appearance of a court imposing its own notion of justice through a dubious judicially-mandated criminal charge.