News & Politics

Can Michael Flynn Be Sentenced Without Being Prosecuted for a Crime?

Can Michael Flynn Be Sentenced Without Being Prosecuted for a Crime?
(AP Photo/Manuel Balce Ceneta, File)

There’s a possibility that the federal judge overseeing the Michael Flynn case will sentence the retired general to prison despite the Department of Justice dropping prosecution of his case.

The unusual situation came about when U.S. District Court Judge Emmet Sullivan asked a retired judge, John Gleeson, to argue against the DoJ motion. He also asked Gleeson to recommend whether Flynn should face a criminal contempt charge for perjury — ostensibly because Flynn pleaded guilty twice in court to lying to the FBI and then declared he had not lied.

If Gleeson, a former federal judge and Clinton appointee, were to recommend that contempt charges be applied, Sullivan could sentence Flynn to jail, despite both the prosecution and defense wanting the charges dropped.

Gleeson is a partisan, as he showed in an op-ed published in the Washington Post earlier this week:


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-authoredan 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.”

Sullivan is looking for someone to help backstop his decision and give him cover. But is Gleeson really the guy he wants to use? A Wall Street Journal editorial pulls no punches in skewering Sullivan’s curious decision.

The Journal believes that Sullivan seeking outside comment in the case amounts “to the de facto outsourcing of the prosecution to partisan legal analysts who want Mr. Flynn to hang because he worked for President Trump.”

How partisan?

One such band calls itself the Watergate Prosecutors, who include Nick Akerman. When Donald Trump Jr. released emails relating to a meeting with a Russian lawyer at Trump Tower, Mr. Akerman declared him guilty of “outright treason.” As special counsel Robert Mueller’s report showed, that Trump Tower meeting amounted to nothing.

Is Sullivan’s legal gambit the last desperate hope of anti-Trump partisans to nail Flynn to the wall?

Judge Sullivan doesn’t normally ask others to write his decisions, so what’s the point in this case? This isn’t a Supreme Court argument seeking competing points of view. The competition here is between defense and prosecution, and they both now agree.

This is a criminal case subject to normal rules of evidence that were clearly violated by Mr. Mueller’s prosecutorial team. Our friends at the New York Sun speculate that Judge Sullivan may want to keep the prosecution going for months so a Biden Justice Department could revive it. We hope that’s wrong, though we do recall that Judge Sullivan some months back in open court asked prosecutors if Mr. Flynn might have been charged with “treason.”

What makes Sullivan’s actions suspect is that those charged with a federal crime change their pleas all the time and few are ever charged with perjury or contempt.

Judge Sullivan has stepped outside his traditional role as an impartial adjudicator and become an advocate for the prosecution. That alone should disqualify him from hearing this motion, which was a Hail Mary pass by anti-Trump hysterics in the first place.

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