Judge Emmet G. Sullivan, the federal judge presiding over the Mike Flynn case, the prosecution Bill Barr has now decided was launched by possible criminals in his own department, took a bold, creative and highly principled step in considering the DOJ motion to drop the Flynn prosecution. The DOJ request is unprecedented, a bit of supreme creativity by innovative provocateur Bill Barr; never has someone who pleaded guilty under DOJ prosecution had the case against them dismissed. Judge Sullivan counter-moved with equal flair. I salute a judge who stands up for the rule of law this way. Principled individuals in positions of power are democracy’s only defense against unprincipled individuals in positions of power.
Flynn’s new defense team, working closely with Barr’s DOJ, insisted to Judge Sullivan that he had no choice but to dismiss the case against their client. As a matter of law, this may be so. If the prosecutor drops the criminal case, the case is over. Flynn’s lawyers told Sullivan that the proper venue for those who have a critique of the DOJ’s admittedly novel move (kidding, they didn’t admit the move was novel, why would they?) is the op-ed page, a place where critics are free to whine and carp about the DOJ’s unappealable decision to their hearts’ content. The law, they said, is clear. DOJ prosecutes, DOJ can end prosecution at any time, for any reason– case closed.
Op-ed, you say? Retired Judge John Gleeson (another judge with a reputation for a sturdy spine) had co-written an op-ed in the Washington Post the other day, very skeptical of the way Barr has suddenly reversed the DOJ’s stance on a close Trump ally who pleaded guilty under oath to lying to the FBI about illegal contacts with foreign governments. It turns out Flynn didn’t lie to the FBI once, he lied repeatedly, that the FBI gave him numerous opportunities to correct his lies, Flynn continued to lie. Flynn admitted his guilt under oath, claimed God had told him to repent, move on with his life. Now, with a new legal team, Flynn claims he was misled by his original legal team into taking the guilty plea, he actually didn’t mean to admit jack shit, he wants to withdraw his guilty plea, retract his sworn statements to the court.
This presents an interesting legal question: did Flynn commit perjury when he swore that he had lied to the FBI and then changed his story to say he never meant to admit lying to the FBI? To simplify this sticky legal conundrum, Barr decided to simply step in and dismiss the case against Flynn. Judge Gleeson is apparently not convinced that Flynn is not now guilty of the separate felony of perjury. Judge Sullivan wants to hear more from Judge Gleeson about Flynn’s possible perjury and other issues. He appointed Gleeson to oppose the Justice Department’s motion to drop the Flynn prosecution. Much better than even the fiercest op-ed, I’d say!
You can read the lying New York Times story at this link, for more details.