Criminal law, Politics

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.

 

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

    1. Squeeky– Yeah, she’s an idiot but what idiot sent her out to be a spokesbabe?

  2. All roads lead to Obama.

    Federal Judge Emmet Sullivan is a stooge of Obama.

    Obama’s acts are increasingly desperate.

    The facts are closing in on Obama.

    The fact is, they could have had him any day.
    ____________________________________

    Pancho And Lefty
    Merle Haggard

    Poncho met his match, you know
    On the deserts down in Mexico
    Nobody heard his dyin’ word
    Oh but that’s the way it goes

    All the Federales, they say
    They could have had him any day
    They only let him slip away
    Out of kindness I suppose

    Lefty he can’t sing the blues
    All night long like he used to
    The dust that Poncho bit down South
    Ended up in Lefty’s mouth

    A few gray Federales, they say
    Could have had him any day
    We only let him go so long
    Out of kindness I suppose

  3. I think there is a four-digit population of attorneys at Covington, so I wouldn’t ordinarily assume Holder knew jack about what a couple of associates were doing (or not doing, given how half-assed their work was). However, the resistance is … inneresting.

    One scandal is that they ran up the billable hours so that they left Flynn with a seven-digit charge. Total practice revenue per working attorney in this country averages about $730,000 a year, so a seven-digit charge would be what you’d expect if your attorney worked on your case to the exclusion of all others for about 17 months. Somehow I doubt Covington put that kind of effort into failure.

    1. Absurd– You doubt Covington put great effort into failure. I am not so sure. It was very important to some, including a partner, that they do fail.

    2. I can only reiterate the above:

      “On Monday General Flynn Attorney Sidney Powell tweeted out that the law firm Covington and Burling that mis-represented General Michael Flynn is resisting turning over all documents and specifically those of Eric Holder and Michael Chertoff discussing the Flynn case.”

  5. On Monday General Flynn Attorney Sidney Powell tweeted out that the law firm Covington and Burling that mis-represented General Michael Flynn is resisting turning over all documents and specifically those of Eric Holder and Michael Chertoff discussing the Flynn case.

    I thought this sentence from the above should be repeated.

    1. Allan– I hope Sydney finds time to rip Covington’s guts out and drape them on the Statue of Justice to ripple in the wind next to Sullivan’s crow picked innards.

  6. The greatest service/disservice, depending on your point of view that Trump has done is to bring out the rank partisanship of our press and judiciary.
    TDS has caused this judge to lose his senses. The defense for Flynn is simple. Not having a transcript, and not being made aware of the exculpatory evidence, Flynn was convinced of his own guilt. Much like the way that people are often manipulated into confessing to crimes they did not commit.
    This judge is threatening to upend the entire federal justice system. Upwards of 90% of federal cases end in a plea deal. This actions threaten to make pleading an untenable option.

  7. “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.”

    Hard choices demonstrate the cracks in one’s character and in this case whether they have allegiance to the law or other interests.

    1. Allan– This wasn’t a hard choice. You follow the law and try to be fair and just. No choice at all. Sullivan failed.

          1. That brings one to question the honor that existed in the first place.

            Lets assume that everything surrounding Flynn didn’t have any potentially damaging material. Do you think the left would be fighting this hard? No, because it would make them look bad and the 6 months time seems petty when we are dealing with a decorated general of 30 years. That is something they don’t want but accept that negative because of fear of greater problems turning up.

    2. Allan:
      No power reveals character. JT is a respectful, thoughtful lawyer. He’ll do fine with Sullivan. But cross him once in zealous representation and the red-eyed ogre appears as Sidney Powell found out.

    3. Can Flynn’s lawyers (ideally supported by the Justice Department) now file a motion for Sullivan’s removal from the case? Could they ask for a mandamus ruling by the DC Circuit or the Supreme Court?

      2. lysias:

        Realistically, no there is not precedent for forcing removal of a judge for a power within the judge’s discretion. He should recuse himself for voicing a prejudice against the defendant like calling him a traitor, a spy for a foreign power and for general unwarranted animus towards him. Plenty of that to go around.

      3. “a mandamus ruling by the DC Circuit or the Supreme Court?”

        lysias, People have voiced that as a next step, but who knows

  8. Coerced perjury in a guilty plea is like a coerced confession or a coerced change to a Will–legally invalid–and can be changed as soon as one is free of the coercion.

    1. Absolutely horrid and demonstrates the lack of fealty to the law.

      To me this sounds like a case of delay. It adds all sorts of obstacles in getting to the truth of what happened during the Obama Administration. It appears a lot of pressure is being exerted which makes one suspicious of direct Obama involvement. Does the ex-Obama Administration fear Flynn?

  9. The left has now taken the position that innocent people never plead guilty. That prosecutors never coerce guilty pleas and whatever heavy-handed measures they take to force that guilty plea is fine by them. Try and take back that guilty plea and you’re immediately guilty of another crime: perjury.

    These people are immoral.

    2. “The left has now taken the position that innocent people never plead guilty.”

      It’s odd that you treat “the left” as if it’s a single entity where people all think alike. I dare you to quote multiple people on the left saying that. Or even start by quoting one person on the left arguing that.

      Seems to be a straw man claim on your end.

      “Try and take back that guilty plea and you’re immediately guilty of another crime: perjury.”

      Generally, if someone “willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true,” that’s perjury. Whether someone should be charged with perjury in that case is a separate question. Lots of people who commit perjury aren’t charged.

    3. By their logic, if you plead guilty when you’re innocent, you have committed perjury. Likewise if you plead not guilty and a court convicts, you have also committed perjury. Res judicata.

  10. Either the Deep State got to Sullivan or he got tired of pretending to be an honest, impartial judge.

    1. Jack– In an earlier post I wondered how many judges were unmasked and what they got on them. The Obama people have shown they will stoop to any low act to get what they want. Now we have to wonder about the integrity of the judiciary. Great way to ruin a country Obama.

      1. Word is that the unmasking and surveillance the Obama admin was doing was MASSIVE. They were spying on journalists and just about everybody, even politicians in the Dem party, including Bernie Sanders and his wife.

        1. Anonymous– Very good observation and it leaves one doubting that these thugs would have forgotten about judges when they were unmasking everyone else.

  11. This judge should be removed from the bench and prosecuted for treason. He is siding with Putin.

    1. Liberty, it was ‘Donald Trump’ who sided with Putin, onstage, in Hilsinki Finland, as the whole world stared in confusion.

      Trump deferred to Putin, with regards to Russian interference in the 2016 election, while siding against U S Intelligence.

  12. Obama says this on his ‘private call’ that is promptly ‘leaked’ to the media:

    “There is no precedent that anybody can find for someone who has been charged with perjury just getting off scot-free.”

    Then analysts say ‘huh, Obama got it wrong b/c Flynn wasn’t charged with perjury, was he? No, he wasn’t.

    But now we see Judge Sullivan (good pal of Eric Holder by the by) got the message from the Bat Phone message sent out by Obama himself.

    And voila! Judge Sullivan ‘orders review of possible perjury charge against Flynn.’

    Obama’s communications don’t leak out….they are ‘sent’ out….over the bat waves….

    He really is diabolical isn’t he?

  14. ” 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.”

    I will finish this thought…..”WHICH WOULD BE A GROUNDS FOR SULLIVAN’S IMPEACHMENT”

  15. Wasn’t there a comedy movie called ‘Meet the Fokkers”? What will Judge Sully do? How does it all end? Can’t wait for the next plot twist…

  17. “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.”
    ***********************************
    As proof JT and I think alike occasionally, here’s my trial lawyer hyperbole to his well-reasoned professorial logic. Sorry, I like my prose better but his legal analysis is spot on:

    Here’s my comment on another thread at 8:53 am:

    “mespo727272 says:May 14, 2020 at 8:53 AM
    Speaking of Dim hacks, who’s this John Gleeson (UVA law who has to drive lawyer Bruce Cutler off the case so he could finally convict Gotti who wupped him every time before) character Judge Emmet Sullivan appointed to argue Sullivan’s own motion the he should find Flynn in contempt of court? Sullivan is the same court who called Flynn a traitor and falsely accused him of being a foreign agent while working in the White House. I think Judge Emmet should have just made the motion himself and then found him guilty as a jury of one. Sullivan could have thusly run outside and built the gallows before executing Flynn himself.These Dims all think they’re American Caesars. (See Govs. Blackface, Wolf and the hag in Michigan whose name should always escape us). Here’s hoping for a fun day in the Curia of Pompey real soon. Sic Semper Tyrannis, baby!”

    Take your pick!

  18. Since it’s safe to say this is a political stunt, it might be worth wondering what Sullivan is up to. In addition to admitting an opposing brief that can be circulated in the newspapers, some speculate Sullivan is trying to force a pardon. For whatever reason the liberal elite in Washington think this issue helps to Democratic party. It was never going to do that. To the extent is has any effect on the election, it is to aid Trump. So you’ve got a dose of legal and political malfeasance here.

    1. Not to mention his ego is on the line. He went along with this scam hook line and sinker.

      1. True but one thing for sure, when Trump leaves office, or before, Flynn will have a clean slate.

    3. Steve, delay, delay and more delay. They hope Trump loses the election and everything can be fixed. A circle of connections seems to be forming. It looks worse than ever expected.

      “On Monday General Flynn Attorney Sidney Powell tweeted out that the law firm Covington and Burling that mis-represented General Michael Flynn is resisting turning over all documents and specifically those of Eric Holder and Michael Chertoff discussing the Flynn case.”

      Eric Holder became a partner of the firm (if I am correct) in 2015

    4. No, it’s not “safe to say” that. Here’s another possibility: Flynn really is guilty, and Barr/Shea are working to subvert a valid guilty plea, and Sullivan wants to allow amicus briefs so that both sides of the issue are argued before he rules on the motion.

      Would you agree that Barr/Shea shouldn’t be able to get away with making false claims in their motion? For example, they claimed “This crime, however, requires a statement to be not simply false, but “materially” false with respect to a matter under investigation,” when the law doesn’t require it to be “a matter under investigation,” only a “matter within the [agency’s] jurisdiction.” Mary McCord has already written about how they twisted the statements in her 302 (which was submitted by Barr/Shea as exhibit #3). And here’s more about what the exhibits they submitted reveal about Flynn’s acts: emptywheel.net/2020/05/08/damning-new-details-from-mary-mccord-and-sally-yates/ Barr/Shea claim that the motion is based on “newly discovered” material, but here’s evidence that that isn’t honest either: emptywheel.net/2020/05/07/to-justify-dismissing-mike-flynns-prosecution-timothy-shea-claims-information-doj-has-always-had-is-new/

      So how about this:
      Let Judge Gleeson do the work assigned him, and read his amicus brief along with any another amici briefs submitted, and see how Sullivan responds to add of that additional analysis.

      1. How about this: Sullivan wants to subvert an election and is doing everything in his power to delay this ruling just to do so? Anybody can have a theory but if you don’t think the fix is in with a “judge” already on the record saying the defendant is a traitor and appointed his hand-picked stooge (who likewise expressed an opinion hostile to the defendant) needs to opine on contempt, I’ll sell you some lottery tickets from 2009.

  19. And, in a weird twist, Judge Gleeson and Fokker come up in the same context. This was apparently before the Fokker Judge was slapped down:
    ————–
    The phenomenon of activist judicial oversight when it comes to Deferred Prosecution Agreements (“DPA”) is alive and well at least in Judge John Gleeson’s courtroom. Earlier this month, HSBC’s court-appointed monitor, Michael G. Cherkasky filed a quarterly report describing serious issues with the bank’s progress in improving its Anti-Money Laundering (“AML”) and sanctions compliance programs. Apparently Gleeson was not pleased and has reinserted himself into the case.

    For those not aware, in July 2013, Gleeson approved a DPA between the Department of Justice and HSBC Bank over the British lender’s significant violations of anti-money laundering/sanctions laws and regulations. However, initial approval of the DPA came only after a significant delay during which the Judge indicated he was considering rejecting the agreement as too lenient. In the Memorandum and Order approving the DPA, Gleeson made clear he would continue to monitor implementation of the agreement, warning

    As long as the government asks the Court to keep this criminal case on its docket, the Court retains the authority to ensure that the implementation of the DPA remains within the bounds of lawfulness and respects the integrity of this Court.

    He also directed the parties to file quarterly implementation reports so that the court could monitor HSBC’s progress.

    Flash forward to last Tuesday. Judge Gleeson has ordered that DOJ file the full “First Annual Follow-Up Review Report” produced by Cherkasky. The full report is not required to be filed with the court under the terms of the DPA, which means that Gleeson is unsatisfied, or at least wants to take a closer look at HSBC’s efforts to fix the problems which gave rise to past violations. This comes despite Cherkasky and DOJ’s finding that HSBC continues “to act in good faith to meet the requirements of the DPA.”

    Coming on the heels of Judge Leon’s rejection of the Fokker Services B.V. DPA – it should be obvious by now that judges are not simply going to sit back and accept what either DOJ or defendants are telling them. For both initial terms of, and compliance with, DPAs, judges seem determined to leave their mark.

    https://sanctionlaw.com/judge-gleeson-isnt-done-with-hsbc/#.Xr1eSXJOnIU
    —————
    As reported here by me and by arsumbris, the Fokker decision was slapped down, and Judges were told basically to mind their own business. Not the prosecutor’s purlieu.

    Squeeky Fromm
    Girl Reporter

  20. Me and arsubris have both brought up the Fokker case. Arsubris linked a Harvard Law Review article which I went to and read this, emphasis added:
    —————-
    Fokker’s narrower holding, that a court is not permitted to challenge the prosecution’s charging decisions,
    46. Fokker, 818 F.3d at 744.
    clearly aligns with precedent and basic separation of powers principles. Judge Leon admitted that had the DOJ decided not to prosecute or to dismiss the charges, the “Court would have no role here.”
    47. United States v. Fokker Servs. B.V., 79 F. Supp. 3d 160, 165 (D.D.C. 2015).
    To the degree that Judge Leon based his denial of the motion on his belief that individual actors should have been charged or that different charges should have been brought, the panel was justified in criticizing the district court for “assum[ing] the role of Attorney General.”
    48. Fokker, 818 F.3d at 747 (quoting United States v. Microsoft Corp., 56 F.3d 1448, 1462 (D.C. Cir. 1995)).

    https://harvardlawreview.org/2017/01/united-states-v-fokker-services-b-v/
    ————-
    Squeeky Fromm
    Girl Reporter

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