Judge Sullivan’s “perjury” gambit

Judge Sullivan’s decision to have a former federal judge argue against the DOJ’s motion to dismiss the Michael Flynn prosecution is bizarre enough. In addition, though, Sullivan asked the same judge to consider whether Flynn should face a perjury charge based statements he made to the court in connection with his guilty plea.

I assume Sullivan recognizes that the DOJ’s motion to dismiss the charge of false statements to the FBI makes it very difficult, if not impossible, for Sullivan to sentence Flynn on that charge. The judge is looking for an alternative way of nailing Flynn — one that doesn’t require Justice Department participation or approval.

Is a perjury charge the answer? I doubt it, but as someone who never practiced criminal law, I don’t know.

We’ve all seen movies or television shows in which a judge holds someone in contempt for acting up in court. No prosecution is involved. The judge acts on his own.

But that’s Hollywood. What about reality?

Jonathan Turley directs us to 18 U.S.C. § 401, which states:

A court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as—
(1)Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;
(2)Misbehavior of any of its officers in their official transactions;
(3)Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.

To me, this rule pertains to the kinds of cases in which we see judges hold folks in contempt in movies and on television — acting up, i.e. openly displaying contempt. Perjury is its own substantive crime and doesn’t seem like “misbehavior” for purposes of this statute.

If it isn’t, the “none other” language of the statute should preclude a finding of contempt in Flynn’s case.

But maybe I’m wrong. If so — if perjury can be contempt — is it only the government that can prosecute the contempt/perjury charge (if it chooses to) or can the prosecution be farmed out?

Turley cites Criminal Procedure Rule 42(a)(2). It states that contempt cases are to be prosecuted by the government “unless the interest of justice requires the appointment of another attorney. . .If the government declines the request, the court must appoint another attorney to prosecute the contempt.”

I imagine the argument for appointing another attorney in this case would be that there’s a solid basis for believing Flynn committed perjury and that the interest of justice requires that an outside attorney prosecute this affront to the judicial system, or at least consider prosecuting, if the government won’t do it.

Is there a solid basis for believing Flynn committed perjury in connection with the guilty plea he now repudiates? I wouldn’t think it could be perjury simply to try to take back a guilty plea. That happens pretty often, I believe.

However, it may well be the case (I think it is) that during the colloquy accompanying the plea taking, Flynn admitted that he lied to FBI agents. If Flynn has since given sworn testimony that he didn’t lie to the agents, Sullivan can view Flynn’s admission to the contrary as perjury. If Flynn’s attorney has taken the position in court filings on Flynn’s behalf that he didn’t lie, this might also be a basis for a charge that he committed perjury in his colloquy with the judge.

So maybe Sullivan has hit on a way of nailing Flynn — or at least a better way than denying the DOJ’s motion to dismiss and sentencing Flynn for making a false statement to the FBI.

Turley believes, however, that Sullivan would be on thin ice with a perjury gambit. He says that in going after Flynn for perjury,

Judge Sullivan would. . .effectively create a new case of his own making. At some point, the court risks the appearance of assuming both prosecutorial and judicial functions. A perjury charge leaves the appearance of a court imposing its own notion of justice through a dubious judicially-mandated criminal charge.

(Emphasis added)

One hopes that an appeals court would frown on an attempt by Sullivan to do indirectly what he cannot do directly, given the law applicable to the DOJ’s dismissal motion. One hopes that Sullivan, after he has made Flynn sweat and thumbed his nose at William Barr, would not make such an attempt.

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