Judge Sullivan To Consider Perjury Charge Against Flynn

1280px-Emmet_G._Sullivan_2012Federal 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.


515 thoughts on “Judge Sullivan To Consider Perjury Charge Against Flynn”

  1. A detailed review of the history of rule 48 (a) governing “leave of the court” responsibility and limits to the judges actions in a situation like the Flynn case by a Harvard Law lecturer are at this link.


    In short, the Barr motion in the Flynn case argues that the of the 2 possible reasons for dropping a prosecution this late in the process – to benefit the defendant or to allow the DOJ to then submit new charges – the court’s ability to review the decision by the prosecutors is only available for the latter of the those 2 types. The author finds and cites the history of the commission which devised the rule back in the 1940s, along with SC contributions to the discussion, and finds that it centered entirely on the former type case – where it was for the benefit of the defendant. The reason was why many states automatically require judicial review then and now – to guard against a connected defendant receiving corrupt favoritism. There is no doubt that based on it’s history, that the rule should require judicial review of the motion. Surely, if he doesn’t know this already, Judeg Sullivan will learn of it.

    A link to the entire document (12 pages) is at the page I linked above.

    The conventional view of Rule 48(a) dismissals distinguishes between two types of motions to dismiss: (1) those where dismissal would benefit the defendant, and (2) those where dismissal might give the Government a tactical advantage against the defendant, perhaps because prosecutors seek to dismiss the case and then file new charges. In United States v. Flynn, the Department of Justice argues that Rule 48(a)’s “leave of court” requirement applies exclusively to the latter category of motions to dismiss; where the dismissal accrues to the benefit of the defendant, judicial meddling is unwarranted and improper. In support, the Government relies on forty-year-old dicta in the sole U.S. Supreme Court case interpreting Rule 48(a), Rinaldi v. United States. There, the Court stated that the “leave of court” language was added to Rule 48(a) “without explanation,” but “apparently” this verbiage had as its “principal object . . . to protect a defendant against prosecutorial harassment.”

    But the Government’s position—and the U.S. Supreme Court language upon which it is based—is simply wrong. In fact, the “principal object” of Rule 48(a)’s “leave of court” requirement was not to protect the interests of individual defendants, but rather to guard against dubious dismissals of criminal cases that would benefit powerful and well-connected defendants. In other words, it was drafted and enacted precisely to deal with the situation that has arisen in United States v. Flynn: its purpose was to empower the Judiciary to limit dismissal in cases where the district court suspects that some impropriety prompted the Executive’s decision to abandon a case.

    To be clear, there may be good reason for the district court to grant the Government’s motion to dismiss in United States v. Flynn. But the fiction that Rule 48(a) exists solely, or even chiefly, to protect defendants against prosecutorial mischief should be abandoned. This brief Essay recounts Rule 48’s forgotten history.

    1. And for those who criticize Greenwald for his views:

      “The wide-ranging discussion I had on @RollingStone’s “Useful Idiots” with @mtaibb & @kthalps was one of my favorite about US politics in awhile. Here’s my 2-part answer about going on Fox & disgusting accusations of being a white supremacist sympathizer/fascist-enabler:”


      “Here’s Part 2 of my discussion about going on Fox and being a sympathizer of white supremacy and enabler of fascism.” -Glenn Greenwald


  2. This is just crazy.
    The judge is personally affronted that the government is refusing to prosecute the case, so he is going to single-handedly prosecute Flynn himself, trying to pervert obscure rules into something he can use, even though the judiciary has no prosecutorial powers. Our system is an adversarial one, where there are two (or more) litigants/parties and the judge is to act as a referee to make sure the process is correct and fair; there isn’t supposed to be any position or standing taken by the judge, who is supposed to be neutral, legally and stance-wise.
    The judge should stand back and out of the way between the two parties who have settled on a mutually agreed disposition.

    1. The judge is personally affronted that the government is refusing to prosecute the case
      No that is not what the judge is upset about.

      The judge is upset because the whole case was based on lies and that both the prosecution and the defense were promoting those lies.

      Flynn’s perjury is in regard to presenting a false sworn statement of facts that are the sole basis of the case. It should be obvious that although Flynn on two separate occasions swore that the facts were true and correct, Flynn was not the one who invented the false story. Mueller and the two prosecutors also appear to be guilty of lying to the court about the facts and Flynn’s previous lawyers is also likely to be guilty of misbehavior in Sullivan’s court. It is hard to imagine how a close look at the facts will not reveal that the attorneys involved are in far deeper doodoo than Flynn is.

      1. “It is hard to imagine how a close look at the facts will not reveal that the attorneys involved are in far deeper doodoo than Flynn is.”

        Anyone reading the news can see the Flynn is no longer in trouble. The chance of him spending anytime in jail is ZERO. To suggest otherwise is to show yourself as an idiot.

        1. Where does he go to get his reputation back? How much more money must he spend on his defense? Jail is not the only issue. To suggest otherwise . . .

  3. The circus of Sullivan’s court keeps adding clowns:

    “The federal judge overseeing Michael Flynn’s criminal prosecution has directed the law firm that Flynn fired to reappear as an interested party in the controversial proceeding. On Thursday, that firm complied by filing a notice of appearance.

    “U.S. District Judge Emmet Sullivan of the District of Columbia on Thursday ordered the clerk of the court to “add Covington & Burling LLP (‘Covington’) as an interested party in this matter and directed counsel for Covington to file a notice of appearance on behalf of Covington as an interested party.”…”


    1. ordered the clerk of the court to “add Covington & Burling LLP (‘Covington’) as an interested party
      Covington is an interested party, they hid exculpatory evidence from the court and they are the ones who we are now being told that coaxed Flynn to swear an oath to the court that the false statements in the plea deal were true.

      It should be obvious to anybody that the DOJ is also an interested party as it was the DOJ and its prosecutors that invented the false story that Flynn had denied (to the FBI) discussing sanctions with Kislyak.

      Flynn did lie to the court under oath about the facts in the plea deal, but his lawyers and the prosecution told him to do it. And its not possible to dig into the facts without uncovering that evidence.

      1. Jinn– True, a lot of blame to go around. But the judge has one job if he follows the law: dismiss the case.

        It is the duty of others to investigate wrongdoing. Flynn has a new and competent lawyer. The DOJ has new lawyers. Much of what we know now comes down to them. Their job, not Sullivan’s.

        1. True, a lot of blame to go around. But the judge has one job if he follows the law: dismiss the case.
          Do you believe that if the judge witnesses a crime right before his eyes in his courtroom he is required to turn a blind eye? Federal law says no he does not.

          One thing seems pretty clear, the judge is going to make sure that the Trump DOJ will not come into his courtroom and engage in this sort of gross misbehavior ever again. At the very least he is going to expose the misbehavior and perhaps verbally spank them. He may after doing that dismiss the case.

            1. You mean the Obama DOJ…
              I mean the DOJ officials appointed by Trump and controlled by Trump.

              This whole Flynn Flam case is a fraud and always has been a fraud. Before the Trump DOJ booted the FBI off the case and took over the Russia investigation, the FBI investigators were saying they would be pursuing no charges against Flynn


              After Trump fired Comey Trump stated that the result would be a much longer dragged out Russia investigation. And shortly thereafter Trump had Mueller appointed and sure enough Mueller dragged it out for 2 more years just like trump said he would.


              But Mueller had nothing to investigate. The FBI had pretty much gone over everything already and had found no Trump Russia collusion and so Mueller had to invent phony stories to bring a dead case to life. The first phony story was the Flynn-lied-to-the-FBI story. That phony story led to the phony story and the phony investigation that Trump obstructed justice by trying to get Comey to “go easy” on Flynn for lying to the FBI, even though both Trump and Comey knew that Flynn had never lied during that FBI interview. The next phony story was that trump found out about the obstruction investigation and was going to fire Mueller. So that led to another obstruction investigation. So now in a span of a few weeks Mueller had 3 completely phony stories he could investigate and of course all of this was leaked to the press by the Trump administration in order to foment hysteria about the Mueller investigation by stupid partisans on both sides.

              The Mueller investigation carried on in that vein for two years with one phony controversy following another. But the phony controversies were all designed so that they would eventually fall apart and turn into nothing-burgers. The end result would be the appearance that Trump had done mortal combat with the deep state and triumphed over the deep state. But it was all phony Kayfabe. Trump is no more the enemy of the entrenched establishment than Obama was.

    1. Kurtz– Thanks for that. Very interesting. We have gotten to the point where Americans need to worry more about the FBI than the KGB descendant agencies. What a filthy mess.

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