Judge Sullivan appointed a retired judge from Brooklyn, John Gleeson, to critique the government’s request and help evaluate whether Mr. Flynn’s contradictory statements under oath amounted to criminal contempt of court. Mr. Flynn’s defense lawyer then asked the appeals court to force Judge Sullivan to immediately dismiss the charge, arguing that her client had been abused, and a panel ordered the judge to explain himself.
Defending Judge Sullivan’s decision to appoint a “friend of the court” to critique the government’s new position, Ms. Wilkinson — a well-known trial lawyer and former federal prosecutor who helped represent Justice Brett Kavanaugh during his Supreme Court confirmation fight — cited several cases in which judges have taken that step to ensure they would have adversarial arguments to consider when the prosecution and the defense had aligned.
The Justice Department and lawyers for Mr. Flynn have argued that Judge Sullivan has little choice but to drop the case, citing a 2016 opinion by the Court of Appeals for the District of Columbia Circuit that said that the judiciary “generally lacks authority to second-guess” executive branch decisions about whether to charge or drop a case. But in the new filing, Ms. Wilkinson argued that the 2016 case was different for several reasons.
Among them, the trial judge in the 2016 case had already made a decision about the issue in dispute, but Judge Sullivan has not. That case did not involve a defendant who had already pleaded guilty, as Mr. Flynn has. And, Ms. Wilkinson argued, the prosecution’s abrupt reversal in the Flynn case suggested there might be something irregular, justifying the judge carefully scrutinizing it.
The department’s motion to dismiss the charge, she noted, “featured no affidavits or declarations supporting its many new factual allegations; it was not accompanied by a motion to vacate the government’s prior, contrary filings and representations; it cited minimal legal authority in support of its view on materiality; and it did not mention the March 2017 statements regarding Mr. Flynn’s work for Turkey that were relevant conduct for his guilty plea.”
Ms. Wilkinson also noted that Judge Sullivan needed to resolve the contempt-of-court issue, apart from deciding whether to dismiss the false-statements charge against Mr. Flynn, and argued that it would be more efficient for him to assess all the issues together.
But the Justice Department brief argued that Judge Sullivan had no basis to independently scrutinize whether Mr. Flynn lied under oath to the court, because even if he did, that should be treated as the crime of perjury — which only the Justice Department can prosecute — rather than as contempt of court.
Katie Benner contributed reporting.