BRIAN KILMEADE (CO-HOST): A highly unusual move in the Michael Flynn case. You have presiding Judge Emmet Sullivan now appointing federal retired judge John Gleason, as a lawyer to argue against the Justice Department's motion to dismiss the case. Now, Gleason will instead be exploring the possibility of bringing up new perjury charges against Flynn, and holding him in criminal contempt. Really? Judge Jeanine Pirro used to be a trial judge, she also is author of two best-selling books on just this type of stuff — Radical, Resistance, and Revenge, and Liars, Leakers and Liberals, the hostess of Justice with Jeanine, it's on this weekend, joins us now. Judge Jeanine, first off you, like everybody else, were surprised. I read your remarks about this judge's move. But how can you cut out the prosecution from a case on someone like Michael Flynn? How do you just cut them out?
JEANINE PIRRO (FOX NEWS HOST): Well, you know, what is happening in this case, Brian, is there were two levels to it. There's one is legal, the other is political. Let me make this very clear to the viewers. There is a — two parties, there are two parties to every criminal case, the government and the defendant — the United States and Michael Flynn. The judge is obliged to decide the issue before him, which is whether or not the prosecution wishes to go forward. They do not, they have said there was no predicate crime, the FBI had just investigated him and said there was no criminal activity. There was a denial of Brady material. They didn't give him an attorney, they told him that he didn't need an attorney, and they were framing him. As if that isn't enough.
But what we've got here now is a judge who is so out of his realm that he is seeking other judges to help him co-pilot this case. One, of course, is a Clinton-appointed judge, and of course, Sullivan is an Obama-appointed judge. But now, what he's saying is, “I want everyone else to come in and give me their opinion.” What's so hard about this? The defendant and the United States do not disagree. There is a motion to dismiss, and it is based upon fact. The judge simply needs to go forward, and under Federal Rule 48, it's very clear, the decision to dismiss a charge lies with the prosecution.
Now the fact that this judge wants to bring in other interested parties is clearly political, and I'll tell you why. Ruth Bader Ginsberg, in the United States Supreme Court unanimous decision just this week, reversed a decision by the Ninth Circuit where they invited other parties to come and give their opinion regarding something that was not central to the case. This judge, by saying, ”I want to consider perjury charges against Michael Flynn,” is so out of his realm that it is stunning to anyone who understands criminal justice.
KILMEADE: I know. But he does have the —
PIRRO: Number one. Are you going to say that everyone who pleads “not guilty” to a crime but is thereafter found guilty should be tried for perjury, or just Michael Flynn? Are you going to say that if there is newly-discovered evidence, as there was here, or there's Brady material that's not handed over, that you're going to say, “Well, too bad, you pled guilty.” Are you going to say if there's ineffective assistance of counsel, as is alleged here with the Covington lawyers — because by the way, it was their law firm that had those papers the FBI knows that we couldn't find, and now we find out we can't find 302s. This is a political hack-job, and it is an outrage that it is occurring. And I could go on and on, Brian, but ask me whatever you want.
KILMEADE: So yesterday — I can't even make sense of this — his ex-attorneys, Robert Kellner and Stephen Anthony from Covington & Burling, they have pled to see if they can get back in on the case. So they actually — the fired lawyers just filed court papers to reappear in his case. They were charged as people that didn't represent him well, to be kind, and now they want back in. Does Michael Flynn have a say in this? The prosecution drops their case, his attorney — he drops the attorneys — now his ex-attorneys want in. Can they do this?
PIRRO: Well, no, in any courtroom in America, that could not be done, but Emmet Sullivan has already indicated his bias when he asked whether or not Flynn should be prosecuted for treason, and said that you know, that he was an embarrassment or whatever to the country. This judge should be recused. He is an embarrassment to the bench and to the robes that he wears. He is doing nothing but trying to extend this case through the election, and they are persecuting Michael Flynn. This is fundamental criminal justice — there is a motion before you, Judge, decide that motion. If you are incapable of deciding it, and can't make a decision with all the law clerks that you have, then recuse yourself.
But this is politics, it's an activist judge, it's the left coming in. Covington is the law firm where Eric Holder is a partner, they want in on this. It's a total — it's an embarrassment. Every prosecutor I know is beside himself or herself with what they're doing to the justice system. And remember, this is the same crew that went after Kavanaugh, and said there's no presumption of innocence. I mean, what is happening in America today is an outrage. It's shocking.
KILMEADE: It is.