Former National Security Adviser Michael Flynn. | Alex Wroblewski/Getty Images
A federal judge is signaling that he might pursue perjury or contempt charges against former national security adviser Michael Flynn over his effort to abandon a guilty plea to a charge of lying to the FBI.
The Justice Department moved last week to drop the prosecution of Flynn launched by special counsel Robert Mueller, but U.S. District Court Judge Emmet Sullivan slammed the brakes on that effort by announcing Wednesday evening that he is appointing a former federal judge to argue against the government�s unusual bid to dismiss the case against an ally of President Donald Trump.
Sullivan�s order also directed the retired judge, John Gleeson, to recommend whether Flynn should face a criminal contempt charge for perjury � apparently for declaring under oath at two different court proceedings that he was guilty of lying to the FBI, before he reversed course in January and claimed he had never lied.
Sullivan�s announcement appears to shatter the hopes of Flynn�s defense team that the court case will quickly fade away. Instead, the retired general who spent a little more than three weeks as national security adviser before being fired by Trump faces a legal brawl that could drag on for months.
Gleeson, who was appointed to the federal bench in New York by President Bill Clinton and retired to enter private practice in 2016, has already staked out a position deeply skeptical of Attorney General William Barr�s decision to abandon the Flynn prosecution. The ex-judge co-authored an op-ed earlier this week that decried the move.
�Government motions to dismiss at this stage are virtually unheard of,� Gleeson and his co-authors wrote in The Washington Post. �There has been nothing regular about the department�s effort to dismiss the Flynn case. The record reeks of improper political influence.�
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Sullivan�s decision to put up some resistance to the Justice Department�s request could also renew pressure on Trump to grant Flynn a pardon that could forestall any further prosecution now or in the future. Trump and his allies had celebrated Barr�s decision to sign off on dropping the charges against Flynn, and they appeared caught off-guard by the development. The move came as some of the former Justice Department and FBI officials, whose testimony was cited in the department�s dismissal motion, complained that their words had been twisted to justify it.
Asked about a pardon earlier on Wednesday, Trump said he did not want to discuss it, but added: �The FBI said he didn�t lie.� He was referring to Flynn�s pivotal interview with agents four days after Trump�s inauguration. They said they detected no signs of evasion or deceit during the session, even though they ultimately concluded and Flynn eventually admitted that his statements were false.
Flynn�s lead attorney, Sidney Powell, did not immediately respond to an email seeking comment, but she did retweet a message noting the judge�s order and suggesting that he might have been acting at the behest of former President Barack Obama.
A Justice Department spokeswoman declined to comment on Sullivan�s latest order.
Sullivan�s decision wasn�t the first twist in the Flynn saga on Wednesday. Earlier, the acting director of national intelligence, Richard Grenell, provided Congress with a list of Obama administration officials who sought access to intelligence that might have revealed Flynn�s identity. Trump allies have long claimed that the decision to �unmask� Flynn was part of a sinister effort to entrap him, but intelligence officials noted that the requests were all made lawfully and with justification � and most occurred before Flynn�s calls with Kislyak that caused the FBI to revisit its case against him.
With his guilty plea in December 2017 to a single, felony charge of making false statements to the FBI, Flynn became the only Trump White House official to face a criminal charge in the Mueller investigation.
Flynn admitted to making several false statements during his Jan. 24, 2017, interview with the FBI, including by denying having had any substantive exchange with Russia�s ambassador to the U.S. at the time, Sergey Kislyak, about sanctions the Obama administration had just imposed.
The retired Army lieutenant general and former Defense Intelligence Agency chief also conceded that he�d signed foreign-agent registration paperwork that contained false or incomplete information about the involvement of Turkey�s government in a $600,000 contract his consulting firm received while he was a top adviser to Trump during the 2016 presidential campaign.
In exchange for leniency, Flynn also agreed to cooperate with prosecutors and did so extensively � sitting for 20 interviews about a slew of different matters probed by Mueller�s team and other lawyers. But after cooperating for nearly two years, Flynn dropped his original legal team, hired Powell and sought to unravel his guilty plea, claiming egregious misconduct by the prosecutors in the case and demanding reams of new material that he alleged the government had failed to turn over. Sullivan had largely rejected those contentions.
The Justice Department�s motion last week seeking to dismiss the case against Flynn undercut years of arguments from Mueller prosecutors and their successors that his false statements were a crime. The new filing, signed solely by a former Barr aide serving as the U.S. attorney in Washington, contended that the FBI had no legitimate reason to interview Flynn and that his statements were not material to any bona fide investigation ongoing at that time.
The submission came about a week after prosecutors gave Flynn�s lawyers text messages showing that the FBI was on the verge of closing its investigation of Flynn before holding it open after learning about the conversations with Kislyak.
In December 2018 � at a hearing where Flynn was originally expected to be sentenced by Sullivan � Flynn reaffirmed his guilty plea. He also said he was satisfied with his lawyers from the prestigious firm of Covington & Burling and that he had no concerns that any information relevant to his defense was being withheld. In the hearing, Sullivan chastised Flynn and said he arguably �sold your country out� and suggested he might sentence Flynn to a jail term, even though prosecutors had recommended leniency. Sullivan ultimately gave Flynn time to complete his cooperation with prosecutors before submitting to sentencing � and that�s when Flynn�s posture toward the government flipped.