Judge Appoints ‘Amicus Curiae,’ Asks Whether Flynn Should Be Held in Contempt

May 14, 2020 Updated: May 15, 2020

A federal judge on Wednesday issued an order appointing a retired judge with advising whether former Trump administration national security adviser Lt. Gen. Michael Flynn should face an additional criminal contempt charge for perjury.

U.S. District Judge Emmet Sullivan, who presides over Flynn’s criminal case, appointed John Gleeson, a former federal judge in New York, as an amicus curiae—or friend-of-the-court—to “present arguments in opposition to the government’s Motion to Dismiss,” and to “address whether the Court should issue an Order to Show Cause why Mr. Flynn should not be held in criminal contempt for perjury.”

Gleeson has been in private practice since 2016. Before serving for more than two decades as a federal judge in New York, he was a federal prosecutor who handled a number of high-profile cases. One such case was against late Gambino crime family boss John Gotti.

Sullivan’s short written order (pdf) came after he said on Tuesday in another written order that he would not immediately rule on the Department of Justice’s (DOJ) motion to dismiss the case against Flynn, and would instead consider letting outside parties weigh in. The exact reasons as to why Sullivan ordered a perjury review are unclear.

Justice Department spokeswoman Kerri Kupec declined to comment on Sullivan’s latest order when reached by The Associated Press. Earlier, in an interview Tuesday evening with Fox News, Kupec said the department’s position was clear in the motion to dismiss the case.

“We do not believe this case should have been brought, we are correcting that and we certainly hope that in the interest of true justice, that the judge ultimately agrees and drops the case against General Flynn,” she said.

Flynn pleaded guilty on Dec. 1, 2017, to one count of lying to the FBI by testifying in court under oath. In January 2020, Flynn asked Sullivan, a Clinton appointee, to allow him to withdraw his guilty plea because of the prosecutors’ “bad faith, vindictiveness, and breach of the plea agreement,” his legal team wrote in a court filing (pdf) at the time.

Flynn’s lead lawyer, former federal prosecutor Sidney Powell, had said that Flynn didn’t lie, and pleaded guilty because prosecutors at the time didn’t give him exculpatory information and exerted pressure on him and his family. Powell also argued that Flynn’s previous lawyers had a conflict of interest that prevented them from advising him properly.

Flynn’s guilty plea was related to an interview he had with FBI agents on Jan. 24, 2017. The interview focused on his phone calls in late 2016 with then-Russian Ambassador to the United States Sergey Kislyak.

While it’s possible that what Flynn told the FBI agents didn’t quite match what the FBI knew from wiretaps of Kislyak’s calls, Flynn didn’t intentionally lie, Powell previously said.

The DOJ filed a motion to dismiss the case against Flynn on May 7, saying that the FBI had insufficient basis to question Flynn and that his statements were not material to the agency’s broader counterintelligence investigation at the time into allegations of ties between Russia and the Trump campaign, code named “Crossfire Hurricane.” Those allegations have since been disproven.

In May 2017, former FBI Director Robert Mueller was appointed as a special counsel to take over the FBI’s investigation, which, after 22 months did not find sufficient evidence to establish that Trump or his campaign conspired or coordinated with the Russian government to sway the outcome of the 2016 presidential election.

FBI documents unsealed recently show that an FBI official in a handwritten note dated Jan. 24, 2017, had asked whether the FBI’s goal in interviewing Flynn was to seek the truth or to set Flynn up.

“What’s our goal? Truth/Admission or to—get him [Flynn] to lie, so we can prosecute him or get him fired?” the note read.

The FBI documents also showed that on Jan. 4, 2017—nearly three weeks prior to the Jan. 24, 2017, interview with Flynn—the FBI’s Washington field office had concluded there were no more leads to follow and that the FBI should close the Flynn probe. But the FBI head of counterintelligence operations at the time, Peter Strzok, urged the office to keep the Flynn probe open and noted that “the FBI’s senior leadership on the ‘seventh floor’ was ‘involved,’” according to internal FBI text messages.

The Associated Press and Petr Svab contributed to this report.

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