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Judge in Flynn case eyeing possible contempt charge for perjury

The federal judge presiding over former national security adviser Michael Flynn’s criminal case suggested on Wednesday that he is considering the possibility of holding President TrumpDonald John TrumpAppeals court OKs White House diverting military funding to border wall construction Pentagon: Tentative meeting between spy agencies, Biden transition set for early next week Conservative policy director calls Section 230 repeal an 'existential threat' for tech MORE’s former aide in contempt for perjury.

U.S. District Judge Emmet Sullivan also tapped a retired federal judge to argue against the Department of Justice’s (DOJ) motion to drop the criminal prosecution of Flynn.

John Gleeson, who spent 22 years as a judge and served as a federal prosecutor before entering private practice, will serve as an amicus curiae, or friend of the court, in opposition to the DOJ’s recently adopted position that Flynn’s case should be dismissed.

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Among the issues Sullivan has asked Gleeson to address is “whether the Court should issue an Order to Show Cause why Mr. Flynn should not be held in criminal contempt for perjury.”

The move comes after the DOJ last week asked Sullivan to drop the charges against Flynn for lying to the FBI about his contacts with Russia shortly before Trump took office, despite Flynn having previously pleaded guilty.

That placed Flynn’s fate in the hands of Sullivan, a Clinton appointee who has been on the bench since 1994 and is regarded as having a fierce independent streak.

A group of more than a dozen former Watergate prosecutors on Tuesday expressed concerns to Sullivan that the DOJ could not be counted on to give the court a balanced presentation of the issues surrounding its move to drop Flynn’s prosecution. 

The Watergate prosecutors said DOJ's move raised concerns about whether its decision was taken in good faith, and even suggested the court may have grounds to reject Flynn's dismissal. In a forthcoming brief, the group said, they plan to address "whether the Court should instead deny the motion and proceed to sentencing."

The extent to which Gleeson may adopt a similar line of argument before the court is unclear. He did not immediately respond to a request for comment. 

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Carl Tobias, a law professor at the University of Richmond, said Gleeson has a track record of adopting positions he believed to be fair, even if unpopular.

Before assuming the bench, Gleeson spent 9 years as federal prosecutor in the Eastern District of New York (EDNY), where he drew headlines for securing a conviction against mob boss John Gotti. President Clinton later appointed him as a district judge in the same federal district.

“He was a highly respected judge in EDNY and assumed positions that he thought were fair, such as mandatory sentences, even though they might not be popular,” Tobias said.

Updated at 7:55 p.m.