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Lawyers Say Retired Judge’s Brief on DOJ’s ‘Patently Irregular’ Michael Flynn Dismissal Was ‘Devastating’ and ‘Masterful’

WASHINGTON, DC - DECEMBER 18: Former White House National Security Advisor Michael Flynn and his wife Lori Andrade leave the Prettyman Federal Courthouse following a sentencing hearing in U.S. District Court December 18, 2018 in Washington, DC. Flynn's lawyers accepted the judge's offer to delay sentencing for lying to the FBI about his communication with former Russian Ambassador Sergey Kislyak. Special Prosecutor Robert Mueller has recommended no prison time for Flynn due to his cooperation with the investigation into Russian interference in the 2016 presidential election.

Judge Emmet Sullivan’s appointed amicus curiae issued a stinging rebuke of retired lieutenant general Michael Flynn and the U.S. Department of Justice (DOJ) in a brief filed Wednesday.

“[T]he Court should deny leave because there is clear evidence of a gross abuse of prosecutorial power,” retired judge and former prosecutor John Gleeson wrote in his 82-page filing–directly addressing the extraordinary intervention of Attorney General Bill Barr in the case.

In early May, the DOJ head directed his subordinates to ask the U.S. District Court in the District of Columbia to dismiss charges of lying to federal agents against the president’s one-time national security advisor. Judge Sullivan, who has overseen Flynn’s case for years and who has been critical of the defendant in the past, took umbrage at the request and asked for any interested parties to intervene in the case in order to assess the merits of such a dismissal. Gleeson, known for his perspicacity viz. federal standards, was hand-selected by Sullivan for his analysis on May 13. (Gleeson had written an Op-Ed in the Washington Post about the case which was published May 11.)

“This ‘ex-judge’ is John Gleeson,” noted public defender Scott Hechinger via Twitter. “The former federal prosecutor who prosecuted John Gotti. The former judge with one of the most brilliant minds & most protective of defendant’s rights. He would not say things like this if he weren’t dead serious.”

The man who secured the conviction of John Gotti and who prosecuted infamous day trader Jordan Belfort said a conviction against Flynn was entirely appropriate–all things considered–because justice demanded it.

Per the amicus brief:

The Department of Justice has a solemn responsibility to prosecute this case—like every other case—without fear or favor and, to quote the Department’s motto, solely “on behalf of justice.” It has abdicated that responsibility through a gross abuse of prosecutorial power, attempting to provide special treatment to a favored friend and political ally of the President of the United States. It has treated the case like no other, and in doing so has undermined the public’s confidence in the rule of law.

Legal experts were generally effusive in their estimation of both the retired judge’s reasoning and conclusions.

“Judge Gleeson’s brief was a masterful reality-check regarding the state of the law and the facts concerning General Flynn’s perjury,” national security attorney Bradley P. Moss told Law&Crime. “Although there is no guarantee that Judge Sullivan will be swayed by the analysis in the end, the most critically important part of Judge Gleeson’s argument is its methodical dissection of how the Justice Department is trying to unwind its own past legal positions based on a laughably weak theory regarding the materiality legal threshold.”

Materiality is a key element of the crime that occurs when someone lies to federal investigators. While the government maintained their prosecution of Flynn for years based on the alleged material nature of his false statements, purportedly exculpatory evidence publicly released earlier this year called the underlying propriety of Flynn’s prosecution into doubt. Barr responded by filing for a dismissal allegedly based on the non-materiality of Flynn’s admitted lies but which was actually based on the “circumstances of [his] case.”

Gleeson found that excuse more than a bit lacking.

“This highly unusual effort, and the strained maneuvers accompanying it, afford strong evidence that [DOJ’s] stated reasons regarding materiality are pretextual,” the brief notes. “The [DOJ] devotes considerable ink to ‘predication,’ and to the ‘open’ or ‘closed’ status of Crossfire Razor. This is pure misdirection.”

Harvard Law Professor Laurence Tribe was also firmly on board with the retired judge’s thorough trashing of the DOJ’s position.

“The amicus brief on behalf of Judge Gleeson is genuinely spectacular,” he said in an email. “It is thorough, careful, precise, candid, utterly devastating as a legal matter, and not in the least bit overstated. No judge who rules against the position articulated in this brief can possibly retain the respect of his or her peers.”

The constitutional law expert elaborated on the Gleeson analysis:

As this amicus brief meticulously demonstrates beyond any reasonable doubt, a decision in favor of DOJ in this case would have to be “based solely on the fact that Flynn is a political ally of President Trump.” I cannot recall reading a more compelling or more obviously irrefutable legal submission in years. If I had been a lawyer on the other side of this matter, I’d be thoroughly ashamed of myself. And If you think my praise is easily earned when I agree with a brief’s bottom line, you’re wrong.

Tulane Law Professor and legal analyst Ross Garber agreed with the Gleeson’s take on the materiality discussion–especially given the DOJ’s efforts to unwind its own prior positions on what, exactly, constitutes materiality under federal law.

“The portions of Judge Gleeson’s brief dealing with the main issue – whether to reject the Government’s Motion to Dismiss – are well done,” Garber told Law&Crime. “I think they present a close call for the court and, perhaps ultimately, for reviewing courts.”

“As Judge Gleeson notes, normally prosecutorial decisions are for the executive branch. And here, conviction has not attached because Flynn hasn’t been sentenced yet. I am concerned about allowing courts to delve into prosecutors’ decisions to drop cases when defendants consent. But here, as Judge Gleeson lays out, the [DOJ’s] conduct has been patently irregular and its rationale muddled at best. And the government’s role is limited following a guilty plea. This may indeed be a rare instance in which a court – after a guilty plea – can reject the government’s motion to dismiss and proceed to sentencing.”

But the more shocking headline news–that Gleeson believes Flynn committed perjury by trying to withdraw his guilty plea–was a bit of bridge too far for the political investigations expert.

Regarding a specific request from Sullivan as to whether or not Flynn also committed perjury during the years-long court proceedings, Gleeson answered in the affirmative but advised against prosecuting him on any such novel charges.

“I respectfully recommend, however, that the Court not exercise that authority,” Gleeson wrote. “Rather, it should take Flynn’s perjury into account in sentencing him on the offense to which he has already admitted guilt.”

Garber was less than impressed with that conclusion:

It would be manifestly unjust if a person in Flynn’s position would be punished, much less independently charged with perjury, for changing his mind after a guilty plea, particularly given the government’s current position. The reality is that Flynn, like many defendants, had enormous pressure to plead guilty and admit to facts agreeable to prosecutors. Without doing so he would not have gotten a plea agreement or a cooperation agreement providing a lifeline for potential leniency; he likely would have been charged with more crimes; he would have faced a much more substantial sentence if convicted after trial (as most defendants are); he would have had to endure lengthy, grueling, financially ruinous litigation; and his son may have been prosecuted. It is the dirty secret of guilty pleas: because of the government’s overwhelming power, many defendants plead guilty even when they think they aren’t.

[Image via Chip Somodevilla/Getty Images]

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