In one of the least shocking developments in the otherwise shocking Michael Flynn case, ex-Judge John Gleeson who was appointed as Amicus by Judge Emmet Sullivan, has filed a vituperative Reply Brief arguing that the government should not be permitted to drop criminal charges against Flynn.

This comes after the D.C. Circuit Court of Appeals, in an en banc ruling, overturned a panel decision ordering Sullivan to grant the government motion as premature since Sullivan had not yet denied the motion to dismiss.

So Gleeson was given the green light to file his brief.  In his opening Brief (pdf.) in June, Gleeson argued against dismissal.

In his just filed Reply Brief (pdf.) Gleeson again argues, in particularly pungent language, among other things:

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. There is clear evidence that the Government’s Motion to Dismiss the case against Defendant Michael T. Flynn rests on pure pretext. There is clear evidence that this motion reflects a corrupt and politically motivated favor unworthy of our justice system. In the face of all this, the Government makes little effort to refute (or even address) the evidence exposing its abuses—and the arguments it does advance only further undermine its position. Instead, the Government invokes a parade of false formalities that would reduce this Court to a rubber stamp. The Government’s motion should therefore be denied.

Where have we heard a similar argument before? Oh, that’s right, the op-ed Gleeson wrote in WaPo on May 11, 2020, two days before he was appointed by Sullivan:

The Justice Department’s move to dismiss the prosecution of former national security adviser Michael Flynn does not need to be the end of the case — and it shouldn’t be. The Justice Department has made conflicting statements to the federal judge overseeing the case, Emmet G. Sullivan. He has the authority, the tools and the obligation to assess the credibility of the department’s stated reasons for abruptly reversing course….

Prosecutors deserve a “presumption of regularity” — the benefit of the doubt that they are acting honestly and following the rules. But when the facts suggest they have abused their power, that presumption fades. If prosecutors attempt to dismiss a well-founded prosecution for impermissible or corrupt reasons, the people would be ill-served if a court blindly approved their dismissal request. The independence of the court protects us all when executive-branch decisions smack of impropriety; it also protects the judiciary itself from becoming a party to corruption….

There has been nothing regular about the department’s effort to dismiss the Flynn case. The record reeks of improper political influence….

Flynn’s guilt has already been adjudicated. So if the court finds dismissal would result in a miscarriage of justice, it can deny the motion, refuse to permit withdrawal of the guilty plea and proceed to sentencing.

Sullivan appointed someone Sullivan knew would give Sullivan the opinion Sullivan wanted.

The appointment of Gleeson, purportedly as a neutral amicus, was a farce. It’s was the type of bad faith which led the panel to question the propriety of Sullivan’s actions.

So now Sullivan gets to put on a show trial of the government’s dismissal of the charges. It’s not at all clear what Sullivan will do since the law is so clear that Sullivan has no choice in the matter, and can’t force the government to continue a prosecution. But in this “shocking” case, be prepared to be shocked not shocked.

Argument is September 29, 2020, at 11 a.m.

 

 
donate
Donations tax deductible
to the full extent allowed by law.