Thursday, May 14, 2020

Judge appoints former judge to oppose DOJ decision to drop Flynn case

The federal judge overseeing the case against President Trump’s former national security adviser Michael T. Flynn appointed a hard-charging former prosecutor and judge to oppose the Justice Department’s effort to drop the case and to explore a perjury charge against Mr. Flynn, reported the New York Times.
Judge Emmet G. Sullivan’s appointment of the former judge, John Gleeson, was an extraordinary move in a case with acute political overtones. Mr. Flynn pleaded guilty twice to lying to investigators as part of a larger inquiry into Russia’s interference in the 2016 election.
Mr. Flynn later began fighting the charge and sought to withdraw his guilty plea. Then last week, the Justice Department abruptly moved to drop the charge after a long campaign by Mr. Trump and his supporters, prompting accusations that Attorney General William P. Barr had undermined the rule of law and further politicized the department.
Judge Sullivan also asked Judge Gleeson to explore the possibility that by trying to withdraw his pleas, Mr. Flynn opened himself to perjury charges.
The Justice Department declined to comment. Judge Gleeson did not respond to a request for comment. Judge Sullivan had said on Tuesday that he would consider briefs from outsiders known as amicus curiae, or “friend of the court,” who opposed the government’s request to dismiss the case against Mr. Flynn.
While judges do sometimes appoint such third parties to represent an interest they feel is not being heard in a case, Judge Sullivan’s move was highly unusual, said Samuel Buell, a former federal prosecutor who now teaches criminal law at Duke University.
Judge Sullivan, he said, is essentially bringing in an outsider to represent the point of view of the original prosecutors, who believed Mr. Flynn had committed a crime before Mr. Barr intervened and essentially replaced them with a prosecutor willing to say he had not.
“This is extraordinary for the judge to appoint somebody to argue against a prosecutors’ motion to dismiss a criminal case,” Mr. Buell said. “But it’s extraordinary for a prosecutor to move to dismiss this sort of criminal case.”
 “What the Justice Department did in the first case is, as far as any of us can figure out, unprecedented,” he added. “So the fact that this is pretty unprecedented too is not that surprising.”
It was not immediately clear what Judge Sullivan was focused on with his request for input on whether to essentially accuse Mr. Flynn of criminal perjury.
Mr. Buell said he doubted it would qualify as perjury for Mr. Flynn to embrace the Justice Department’s claim that he committed no crime because his admitted lies were purportedly immaterial to a proper investigation — whether or not that legal theory is true. But, Mr. Buell said, there could be a legitimate issue if Mr. Flynn were to claim that he did not lie after all — a notion the Justice Department’s filing also hinted at — despite previously telling judges that he had.
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