The amicus curiae who was appointed by the court to argue against the Department of Justice’s motion to dismiss the prosecution against retired Lt. Gen. Michael Flynn tore into the DOJ in a searing brief on Friday. John Gleeson, a retired federal judge and former mob prosecutor, said in straightforward fashion that the Flynn case is illustrative a pattern of the DOJ “trying to give special treatment to a criminal defendant because he is favored by the President.”
Gleeson, who argued in June that Flynn committed perjury and deserved to be punished for it, took direct aim at the DOJ’s motivations for intervening in a case in which the defendant pleaded guilty twice to lying to the FBI.
The court-appointed amicus began by counting the ways justice shouldn’t happen in the United States before saying those no-no’s were “exactly” what’s happened in the Flynn case:
To describe the Government’s Motion to Dismiss as irregular would be a study in understatement. In the United States, Presidents do not orchestrate pressure campaigns to get the Justice Department to drop charges against defendants who have pleaded guilty—twice, before two different judges—and whose guilt is obvious. And the Justice Department does not seek to dismiss criminal charges on grounds riddled with legal and factual error, then argue that the validity of those grounds cannot even be briefed to the Court that accepted the defendant’s guilty plea. Nor does the Justice Department make a practice of attacking its own prior filings in a case, as well as judicial opinions ruling in its favor, all while asserting that the normal rules should be set aside for a defendant who is openly favored by the President.
Yet that is exactly what has unfolded here.
Gleeson then said that there is “clear evidence” that DOJ’s motion to dismiss is a “corrupt and politically motivated favor unworthy of our justice system.” These machinations, Gleeson contends, are not out of U.S. District Judge Emmet Sullivan’s reach to stop because there is a “live” Article III case or controversy. Sullivan promptly jumpstarted the Flynn case after the D.C. Circuit denied the defendant’s motion for an extraordinary writ of mandamus (i.e., an attempt to force Sullivan to dismiss the case). Oral arguments have been set for Sept. 29.
The DOJ, Gleeson asserted, fell “short” when arguing that precedent proved Rule 48(a)’s “with leave of court” clause amounts to a rubber stamp that requires dismissal—with no wiggle room for judicial discretion.
“But the Government falls short in its apparent effort to wring from Fokker a categorical rule that this Court has no authority to review the exercise of discretion that led to the instant Motion to Dismiss. Fokker did not silently ‘eviscerate’ Ammidown, which it cited with approval,” Gleeson’s brief went on. “Nor did it impliedly sideline text, history, and decades of cases. Neither its holding nor its reasoning created an atextual asymmetry in Rule 48(a) by holding that courts may deny opposed motions—but may not deny unopposed ones. Fokker indeed described protecting defendants as the ‘principal object’ of the rule (not the ‘exclusive object’), but it also stated that ‘clear evidence’ may overcome ‘the presumption of regularity” that prosecutors enjoy in wielding their charging power.”
And the government isn’t entitled to the presumption of regularity in this decidedly irregular case, according to Gleeson. The government can not be granted license to lie about its rationales for dismissal by sidelining the judge entirely, he argued:
Every purpose served by the reason-giving requirement of Rule 48(a) would be gutted if the Government were free to mislead the Court, or to proffer explanations that do not withstand even cursory consideration, or to declare that the Court is powerless to even inquire about any of the Government’s asserted rationales.
Gleeson asserted that the correct way to view Rule 48(a) is as a guardrail against “corrupt, politically motivated dismissals—the very concern that motivated adoption of the rule in the first place.”
And Gleeson believes a pattern of corrupt decision-making by the DOJ—in the Flynn case and otherwise—supports his position that DOJ is not entitled to rubber-stamp dismissal:
As detailed in my opening brief, Flynn is a close ally of President Trump, who personally pressured the FBI director to “let this go” within weeks of Flynn’s crime, who has since repeatedly made clear his desire for Flynn to avoid criminal liability, see ECF No. 225 at 17, 56– 59, and who has expressed a desire to re-hire Flynn within his administration, see Max Cohen, Trump Says He Would Welcome Michael Flynn Back to His Administration, POLITICO (July 15, 2020, 11:08 AM), https://perma.cc/5EG4-CLTQ. Allowing dismissal for these “irregular” reasons would necessarily “implicate this Court” in denigrating “settled, foundational norms of prosecutorial independence.”
Most notably, there is now concrete evidence of another prosecutorial decision infected by “heavy pressure from the highest levels of the Department of Justice . . . based on political considerations.” See Oversight of the Department of Justice: Political Interference and Threats to Prosecutorial Independence: Hearing Before the H. Comm. on the Judiciary, 116th Cong. 2 (2020) (statement of Aaron S.J. Zelinsky, Assistant U.S. Att’y), https://perma.cc/48ZV-23EK. This prosecutorial decision concerned the Government’s sentencing recommendation for Roger Stone, another well-connected political ally of the President who committed serious crimes.
There, as here, the President publicly assailed the Department of Justice for pursuing the prosecution. And there, as here, the Department of Justice succumbed to that corrupt pressure—though only after all four career prosecutors resigned from the case. As one of those career prosecutors later testified, senior officials at the Department of Justice exerted “significant pressure” to go easy on Stone, against the record of the case, customary prosecutorial practice, and departmental policy. Id. at 2. This occurred “because of [Stone’s] relationship to the President,” id., and “because the U.S. Attorney”—who also signed the Rule 48(a) motion in these proceedings—“was ‘afraid of the President.”
Gleeson tacked on a footnote to that last line.
“Perhaps those officials had reason to worry: the President recently fired a prominent and well-respected U.S. Attorney who was investigating his associates,” Gleeson wrote, linking to a CNN article about the firing of U.S. Attorney for the Southern District of New York Geoffrey Berman.
In summary, Gleeson argued: the Flynn case should not be dismissed; Flynn should be sentenced; Flynn’s “perjury” should be taken into account at sentencing.
[image via Alex Wroblewski/Getty Images]
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