Federal Judge Emmet G. Sullivan late Wednesday issued a stunning ruling in the prosecution of Michael Flynn, President Donald Trump‘s former National Security Advisor. The two-pronged order (1) appoints a former federal judge to argue against dismissing the case; and (2) considers holding Flynn in criminal contempt for perjury.
“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.”
Judging by the order, Sullivan is not pleased that Flynn took up the court’s time by pleading guilty, firing his lawyers, hiring new lawyers, and moving to withdraw his guilty plea. As if that wasn’t enough, the Department of Justice filed a motion to dismiss its case against Flynn.
Gleeson, a Bill Clinton nominee to a federal judgeship in the Eastern District of New York, was previously an Assistant United States Attorney for the same district. As a prosecutor, Gleeson secured a conviction against mobster John Gotti. He also prosecuted the so-called “Wolf of Wall Street,” Jordan Belfort. He retired as a judge to pursue a career in private practice.
The statute Sullivan cited, 18 U.S.C. § 401, reads as follows:
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.
Criminal Procedure Rule 42 deals with criminal contempt proceedings. It requires, in part, that criminal contempt “be prosecuted by an attorney for the government, unless the interest of justice requires the appointment of another attorney.”
The rule also contains an escape hatch for the judge in the event the government refuses. “If the government declines the request, the court must appoint another attorney to prosecute the contempt.”
Earlier Wednesday, Sullivan again pumped the brakes on attempts by the Department of Justice and Flynn’s legal team to have the criminal against Flynn dismissed. Sullivan told a group of Watergate prosecutors to stand down in their attempt to suggest Flynn could be sentenced regardless of the consecutive attempts of the actual litigating parties to toss the case. Flynn told the prosecutors — whose histories Law&Crime has detailed — to wait for the court to establish a calendar for amicus curiae proceedings.
Flynn’s legal team has argued this week that the case should be dismissed immediately.
Sullivan was nominated to judgeships by presidents Clinton and Ronald Reagan.
READ the order below.
Editor’s note: this piece began as a breaking news report; it has been updated multiple times.
[Image via SAUL LOEB/AFP via Getty Images]
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