Gleeson: DoJ conducting "gross abuse" of power by demanding dismissal of Flynn case

Go figure that the special master hand-picked by Judge Emmet Sullivan sees the Michael Flynn case the same way. In a filing at the deadline before a hearing at the DC Circuit Court of Appeal, retired federal judge John Gleeson argues that a motion to dismiss charges against Flynn amounts to a “gross abuse” of power to favor a political crony of President Donald Trump. Not only does Sullivan have the authority to reject the dismissal motion, Gleeson argues, Sullivan has an explicit duty to punish Flynn — at least for lying to the court in his plea:

A former federal judge appointed to review the Justice Department’s motion to dismiss criminal charges against President Donald Trump’s former national security adviser Michael Flynn said there was evidence of a “gross abuse” of prosecutorial power and that the request should be denied.

Former U.S. District Judge John Gleeson said in a filing Wednesday that the government “has engaged in highly irregular conduct to benefit a political ally of the President.” He urged the judge handling the case to deny the motion and argued that Flynn had committed perjury. …

“The Government’s ostensible grounds for seeking dismissal are conclusively disproven by its own briefs filed earlier in this very proceeding,” Gleeson wrote. “They contradict and ignore this Court’s prior orders, which constitute law of the case. They are riddled with inexplicable and elementary errors of law and fact. And they depart from positions that the Government has taken in other cases.”

Sullivan also asked Gleeson to explore whether he should hold Flynn in “criminal contempt for perjury.”

Well, sure, that’s one way to look at a dismissal motion where the Department of Justice, er … [checks notes] … cops to misconduct by its prosecutors and by the FBI. Isn’t that a “gross abuse” of power, too, one that calls for specific remedies and sanctions? That would make the perjury charge one hell of a way to punish the government. What’s next — giving a defendant the electric chair after a Miranda violation?

For another perspective, our Red State colleague and former prosecutor Shipwreckedcrew calls Gleeson’s brief “a trashy piece of s***.” YMMV, of course:

Crew discussed the case and its nuances with Cam Edwards and me on our VIP Gold Chat this afternoon, and he will have more soon at Red State. For me, I find this both a bit mystifying and also a little anti-climactic. It seemed very likely that Gleeson would argue for Sullivan, not so much on the merits of the case, but because Sullivan appointed him as a quasi-alternative to the DoJ once they signaled they would pull out. And we knew that because Gleeson wrote an op-ed for the Washington Post opposing the dismissal, an op-ed which prompted Sullivan to appoint him in the first place.

Once you see the deck being stacked, it’s hardly surprising to see the results.

The mystifying part is that Gleeson seems so eager to assume the prosecutorial mantle that it undermines his argument. This amicus brief is political advocacy, not unbiased analysis. Does Gleeson really think the court needs to see more political advocacy in this case? The appellate court’s intervention — and its tight time line for response — should have made it clear that the panel wants to pull the leash a bit on something that’s turning into a circus.

All of this adds up to nothing much in those terms. If the appellate court thought that Sullivan was on firm ground, as Gleeson suggests, they wouldn’t have intervened. Perhaps they will be more convinced by oral arguments, but a demand to let Sullivan punish Flynn for perjury when he hasn’t been charged with that crime is likely to convince the panel that the circus is bigger than they thought.

Friday’s hearing should be interesting to watch, or at least to discuss afterward. It might not have the bombast of a Cornel West-Leo Terrell debate, but it might be a lot more edifying.

Update: Via a good friend, the DC Circuit Court of Appeals has … its own YouTube channel. Not sure if this will actually air live, but just in case, here you go.