WASHINGTON – Federal judge in charge of former Trump national security adviser Michael T. Flynn on Wednesday appointed a former prosecutor and accusing judge to oppose the Department of Justice's effort to close the case and explore a charge of perjury against Mr. Flynn.
The appointment by judge Emmet G. Sullivan of former judge John Gleeson was an extraordinary decision in a case of acute political overtones. Mr. Flynn has pleaded guilty twice to lying to investigators as part of a larger investigation into Russia's interference in the 2016 elections.
Later, Mr. Flynn began to fight the charge and sought to withdraw his guilty plea. Last week, the Department of Justice suddenly moved to drop the charge after a long campaign by Mr. Trump and his supporters, inciting charges that Attorney General William P. Barr had undermined the rule of law and further politicized the department.
Justice Sullivan also asked Justice Gleeson to explore the possibility that in trying to withdraw his pleas, Mr. Flynn opened himself up to charges of perjury.
The Department of Justice declined to comment. Justice Gleeson did not respond to a request for comment. Justice Sullivan said on Tuesday that he consider the memories of strangers known as the amicus curiae, or "friend of the court", who opposed the government's request to close the case against Mr. Flynn.
Although judges sometimes appoint such third parties to represent an interest they feel is not being heard in a case, Justice Sullivan's decision was very unusual, said Samuel Buell, a former federal prosecutor who now teaches law criminal law at Duke University.
Justice Sullivan, he said, essentially relies on a stranger to represent the views of the original prosecutors, who believed that Mr. Flynn had committed a crime before Mr. Barr did. intervenes and essentially replaced them with a prosecutor ready to say that he did not have one.
"It is extraordinary for the judge to appoint someone to plead against the prosecutors' motion to dismiss a criminal case," said Buell. "But it is extraordinary for a prosecutor to request the dismissal of this type of criminal case."
"What the Department of Justice did in the first case is, as far as we can understand, unprecedented," he added. "So the fact that it is also unprecedented is not all that surprising."
It was not immediately clear what Justice Sullivan was focusing on on his request for contribution on the advisability of accusing Mr. Flynn of criminal perjury.
Mr. Buell said he doubted whether Mr. Flynn could qualify perjury to accept the Justice Department's assertion that he did not commit any crime because his lies confessed were allegedly not relevant to an appropriate investigation – whether this legal theory is true or not. But, said Buell, there could be a legitimate problem if Mr. Flynn claimed he was not lying after all – a notion that the DOJ file also suggested – although he had already told the judges that he had done it.
Counsel for Mr. Flynn objected to Justice Sullivan's previous order suggesting that he would accept the contribution of third parties and said that it was better to leave opinions outside the opinion sections. "This tribunal is not a forum for their alleged special interest," wrote Mr. Flynn's lawyers in court documents.
Justice Gleeson, who served on the federal bench in Brooklyn and headed the criminal division of the federal prosecutor's office there, has already expressed skepticism about the Department of Justice's motion to dismiss the Flynn case. he co-writes an editorial article this week in the Washington Post urging Justice Sullivan to consider it.
"Prosecutors deserve a" presumption of due process "- the benefit of the doubt that they act honestly and follow the rules," he wrote with two other former federal law enforcement officials in New York. "But when the facts suggest that they have abused their power, that presumption is blurred."
The ministry made contradictory statements to the court, they wrote, saying that Justice Sullivan had "the authority, the tools and the duty" to decide whether the motion to withdraw was credible.
"There has been nothing consistent in the department's efforts to dismiss the Flynn case," they wrote. "The record stinks of undue political influence."
Son of Irish immigrants, Justice Gleeson said in interviews that he accepted a prosecutor's office in Brooklyn after he was removed from office at the Manhattan Federal Prosecutor's Office, then headed by Rudolph W. Giuliani.
As a prosecutor in Brooklyn, judge Gleeson became a celebrity when he successfully sued the notorious ugly John Gotti. President Bill Clinton appointed him to the federal bench in 1994, and he served until 2016.
Justice Gleeson is highly regarded among current and former prosecutors who have described his sophisticated skills in the imprisonment of mafia and other criminals. But he also fought for weaker sentencing guidelines and advocated for policies that would prevent non-violent offenders from leaving prison.
"Justice Gleeson brings a keen sense of justice and federal court procedure to the task of trying to understand how this very unusual case came about," said Carl Tobias, professor of law at University of Richmond.
He shares this sentiment with Justice Sullivan, who displayed little tolerance for government overstepping its limits. After prosecutors obtained a bribery conviction in the 2008 trial of Senator Ted Stevens from Alaska, Justice Sullivan dismissed the charges and ordered an independent prosecutor to consider whether the prosecutors had improperly withheld evidence.
"In almost 25 years on the bench," he said at an angry conference, "I have never seen anything approaching mismanagement and misconduct as I saw in this case. " A report later supported his suspicions, but no charges have been laid.
Justice Sullivan, also appointed by Clinton, has also been closely monitoring Mr. Flynn's case since he began presiding over the case in 2018. He noted during a sentencing hearing aborted that year that he was alarmed to see Mr. Flynn appearing to plead in court. that he hadn't really lied and that investigators had coerced him.
Justice Sullivan demanded that Mr. Flynn acknowledge that he had made his plea "knowingly, willfully, intelligently and with full and satisfactory counsel". He said that he did not remember accepting a guilty plea "from someone who maintained that he was not guilty, and I didn’t "I have no intention of starting today."
He also apologized Mr. Flynn for his crime, noting that he had lied to federal agents on the White House grounds. "I cannot give any guarantees, but I do not hide my disgust, my disdain for this criminal offense," said the judge.
Internal tensions over the Justice Ministry's decision to drop the charge against Mr. Flynn have also arisen. Career prosecutors in the case have opposed other law enforcement officials, including the US attorney for St. Louis, Jeff Jensen, whom Mr. Barr brought for the prosecution. # 39; examine, according to people familiar with the conversations.
They wondered whether the fact that Flynn had lied to investigators about communications with the Russian ambassador to the United States at the time, Sergey I. Kislyak, was important to the matter at the time. The ministry's wider investigation into Russian electoral interference. In seeking to dismiss the charge, the department insisted that this not be the case.
In addition, Bill Priestap, the former head of the F.B.I. counterintelligence, cast doubt on their argument in favor of dropping the case in an interview conducted only a few days before the department filed its request.
The ministry did not include information from Mr. Priestap's interview when he told the court that he wanted to close the case. An official with the Ministry of Justice said that law enforcement officials were writing a report on the interview and would soon file it with the court.
The unusual appointment of judge Gulleson by judge Sullivan came after another federal judge in Washington criticized Barr's conduct of the investigation into Russia. In a separate trial decision under the Freedom of Information Act, Justice Reggie B. Walton stated that Mr. Barr presented a "distorted" and "misleading" photo of the report of the special council, Robert S. Mueller III, before it was made public.
Justice Walton asked if Mr. Barr "had made a calculated attempt to influence public discourse Mueller report in favor of President Trump. "
Charlie Savage, Adam Goldman and Michael Crowley contributed to the report.