In my post last night, I suggested that Judge Emmett Sullivan likely was in the process of deciding who to appoint to argue the government’s (former) position as to whether DOJ would be permitted to drop the case, Judge in Michael Flynn case may allow ‘amicus’ briefs on whether to drop case – is there reason for freak out?

What would be less unusual is if Judge Sullivan appointed counsel to represent the government’s (former) interest, now that the government has changed it litigation posture. That happens approximately once per term in the Supreme Court, particularly where no party any longer is defending lower court decisions. In SEC v. Lucia, the Supreme Court “invited” a specific amicus counsel after the SEC switched its position, and there no longer was anyone in the case defending the lower court decision.

Here, the decision to drop a case post-guilty plea is highly controversial, so perhaps Sullivan feels the need to have SOMEONE argue against it since both the prosecution and defendant are on the same side. Sullivan may, in a sense, be conducting a beauty contest to decide who to appoint to argue the government’s (former) position.

In a worst case scenario, Sullivan doesn’t want to drop the case and is creating as much of a record as he can. It would ultimately be an act of futility, since Trump almost certainly would pardon Flynn in this scenario, but that might be the preferred path for Sullivan given his expressed disdain for Flynn. Make Trump do it.

And so it came to be. And then some. The judge went far beyond appointing someone to argue against dismissing the case.

The Judge just entered an Order (pdf) appointing a retired federal judge as amicus curiae to argue against dismissal and to consider whether Flynn should be held in criminal contempt (emphasis added):

Upon consideration of the entire record in this case, it is hereby

ORDERED that the Court exercises its inherent authority to appoint The Honorable John Gleeson (Ret.) as amicus curiae to present arguments in opposition to the government’s Motion to Dismiss, ECF No. 198, see, e.g., United States v. Fokker Servs. B.V., 818 F.3d 733, 740 (D.C. Cir. 2016); Jin v. Ministry of State Sec., 557 F. Supp. 2d 131, 136 (D.D.C. 2008); it is further

ORDERED that amicus curiae shall address whether the Court should issue an Order to Show Cause why Mr. Flynn should not be held in criminal contempt for perjury pursuant to 18 U.S.C. § 401, Federal Rule of Criminal Procedure 42, the Court’s inherent authority, and any other applicable statutes, rules, or controlling law.

Note that language. It presumably goes to Flynn’s guilty plea. The Judge seems to be threatening Flynn with a perjury charge for falsely pleading guilty.

Here’s 18 U.S.C. § 401:

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—

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.

Here’s Rule of Criminal Procedure 42:

Rule 42. Criminal Contempt

(a) Disposition After Notice. Any person who commits criminal contempt may be punished for that contempt after prosecution on notice.

(1) Notice. The court must give the person notice in open court, in an order to show cause, or in an arrest order. The notice must:

(A) state the time and place of the trial;

(B) allow the defendant a reasonable time to prepare a defense; and

(C) state the essential facts constituting the charged criminal contempt and describe it as such.

(2) Appointing a Prosecutor. The court must request that the contempt be prosecuted by an attorney for 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.

(3) Trial and Disposition. A person being prosecuted for criminal contempt is entitled to a jury trial in any case in which federal law so provides and must be released or detained as Rule 46 provides. If the criminal contempt involves disrespect toward or criticism of a judge, that judge is disqualified from presiding at the contempt trial or hearing unless the defendant consents. Upon a finding or verdict of guilty, the court must impose the punishment.

(b) Summary Disposition. Notwithstanding any other provision of these rules, the court (other than a magistrate judge) may summarily punish a person who commits criminal contempt in its presence if the judge saw or heard the contemptuous conduct and so certifies; a magistrate judge may summarily punish a person as provided in 28 U.S.C. §636(e). The contempt order must recite the facts, be signed by the judge, and be filed with the clerk.

BONUS QUESTION – Can the President pardon a criminal contempt of court?

According the the Cogressional Research Service … Probably Yes.


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