A federal judge suggested Friday that former National Security Adviser Michael Flynn may need to testify under oath in order to withdraw his guilty plea for lying to investigators in the Russia probe.
U.S. District Judge Emmet G. Sullivan in Washington wrote in a brief order that Flynn’s legal team should file paperwork on whether he should hold a hearing on to set aside his guilty plea.
Such a hearing would include “testimony from Mr. Flynn and other witnesses under oath, subject to cross-examination, to show any ’fair and just reason’ for this court to grant his motion to withdraw,” Judge Sullivan said in the order.
The first set of briefs from Flynn’s legal team on the issue are due Wednesday, according to Judge Sullivan’s order.
Flynn currently is scheduled to be sentenced on Feb. 27. He faces from zero to six months in jail, which is the range prosecutors are seeking. Flynn’s lawyers have urged Judge Sullivan to sentence him to probation.
In the order, Judge Sullivan cited a 1995 decision by the U.S. Court of Appeals for the D.C. District that sets a high standard for a defendant to withdraw a plea. The 1995 ruling states that a defendant must show “either an error in the taking of his plea or some more substantial reason he failed to press his case rather than plead guilty.”
The appellate court said it would be “extremely reluctant” to overrule a trial judge who denied a defendant’s withdrawing a guilty plea unless a defendant can prove the judge made a mistake.
A defendant “has to shoulder an extremely heavy burden if he is ultimately to prevail” the Court of Appeals wrote.
Flynn pleaded guilty in 2017 to lying to the FBI about his conversations with Russia’s ambassador to the United States. He was scheduled to be sentenced in 2018, but it was postponed to give him more time to cooperate with government investigations.
Prosecutors initially said he deserved no jail time for providing “substantial assistance” in former special counsel Robert Mueller’s probe into Russian meddling in the 2016 election.
But Flynn’s relationship with the government soured this summer, as prosecutors sought to put him on the stand in their case against a former business partner.
Prosecutors said Flynn changed his story and refused to put him on the stand. They also reversed their position that Flynn should not serve prison time.
Flynn’s attorneys accused the government of misconduct and said prosecutors pressured him to lie under oath.
• Jeff Mordock can be reached at jmordock@washingtontimes.com.
Please read our comment policy before commenting.