Federal Judge Emmet Sullivan has issued a couple of extraordinary orders in the case of former National Security Adviser Michael Flynn after the Justice Department moved to dismiss the case. Sullivan has not only decided to allow third parties to argue against an uncontested motion in a criminal case, but he has appointed retired judge John Gleeson to argue against dismissal and address whether Flynn should face a perjury charge from the Court itself. I have practiced in front of Judge Sullivan for many years. I have repeatedly praised him and expressed my respect for his demeanor and directness. However, these orders raised deeply troubling questions of judicial overreach and enmity. Despite my admiration for Judge Sullivan, I believe he is moving well outside of the navigational beacons for judicial action and could be committing reversible errors if he denies the unopposed motion or moves forward on this perjury claim.
I was critical of Judge Sullivan’s earlier order allowing the filing of amicus briefing in this case. There is no rule allowing for such third party briefing and Judge Sullivan previously rejected such briefing. He was right then and wrong now. While common in civil cases, such third party arguments raise troubling concerns in criminal cases as courts allow the public to argue for enhanced punishments or other measures. It is particularly troubling when the Justice Department itself not only found evidence of prosecutorial abuse but concluded that it cannot ethically proceed with the prosecution. Sullivan is effectively creating a dispute in a case where the defense and prosecution agree that a case should be dismissed.
My concerns have deepened with the latest order:
“Upon consideration of the entire record in this case, it is hereby ORDERED that the Court exercises its inherent authority to appoint The Honorable John Gleeson (Ret.) as amicus curiae to present arguments in opposition to the government’s Motion to Dismiss,” the judge wrote. “[I]t is further ORDERED that amicus curiae shall address whether the Court should issue an Order to Show Cause why Mr. Flynn should not be held in criminal contempt for perjury pursuant to 18 U.S.C. § 401, Federal Rule of Criminal Procedure 42, the Court’s inherent authority, and any other applicable statutes, rules, or controlling law.”
The suggestion that Flynn could be charged with perjury for seeking to withdraw a plea is highly disconcerting. As a criminal defense attorney, my concern is that such a claim could be made in thousands of cases where defendants have sought to withdraw such pleas or allegations of prosecutorial abuse have been raised for dismissal.
The use of Gleeson both to argue against the motion and review possible perjury charges. One role is as an advocate while the other seems to be something like a quasi-special master. Gleeson is also a troubling choice given his public criticism of the Administration over the Flynn case.
The perjury charge would be based on 18 U.S.C. § 401, which states:
A court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as —
(1)Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;
(2)Misbehavior of any of its officers in their official transactions;
(3)Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.
Sullivan knows that such a charge would not be prosecuted by the Justice Department. However, Criminal Procedure Rule 42 states that such cases are to be prosecuted by the government “unless the interest of justice requires the appointment of another attorney … If the government declines the request, the court must appoint another attorney to prosecute the contempt.”
Such an extraordinary action would occur in the context of an already troubling record. Judge Sullivan was previously criticized for suggesting that Flynn could be charged with treason, including an earlier blog column here. He is now allowing third parties to make arguments in a criminal case on an unopposed motion and exploring a charge that he might be able to bring against Flynn. Judge Sullivan would not only ignore the agreement of the parties, the judgment of the Department of Justice, but effectively create a new case of his own making. At some point, the court risks the appearance of assuming both prosecutorial and judicial functions. A perjury charge leaves the appearance of a court imposing its own notion of justice through a dubious judicially-mandated criminal charge.
A detailed review of the history of rule 48 (a) governing “leave of the court” responsibility and limits to the judges actions in a situation like the Flynn case by a Harvard Law lecturer are at this link.
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3599674
In short, the Barr motion in the Flynn case argues that the of the 2 possible reasons for dropping a prosecution this late in the process – to benefit the defendant or to allow the DOJ to then submit new charges – the court’s ability to review the decision by the prosecutors is only available for the latter of the those 2 types. The author finds and cites the history of the commission which devised the rule back in the 1940s, along with SC contributions to the discussion, and finds that it centered entirely on the former type case – where it was for the benefit of the defendant. The reason was why many states automatically require judicial review then and now – to guard against a connected defendant receiving corrupt favoritism. There is no doubt that based on it’s history, that the rule should require judicial review of the motion. Surely, if he doesn’t know this already, Judeg Sullivan will learn of it.
A link to the entire document (12 pages) is at the page I linked above.
Abstract
The conventional view of Rule 48(a) dismissals distinguishes between two types of motions to dismiss: (1) those where dismissal would benefit the defendant, and (2) those where dismissal might give the Government a tactical advantage against the defendant, perhaps because prosecutors seek to dismiss the case and then file new charges. In United States v. Flynn, the Department of Justice argues that Rule 48(a)’s “leave of court” requirement applies exclusively to the latter category of motions to dismiss; where the dismissal accrues to the benefit of the defendant, judicial meddling is unwarranted and improper. In support, the Government relies on forty-year-old dicta in the sole U.S. Supreme Court case interpreting Rule 48(a), Rinaldi v. United States. There, the Court stated that the “leave of court” language was added to Rule 48(a) “without explanation,” but “apparently” this verbiage had as its “principal object . . . to protect a defendant against prosecutorial harassment.”
But the Government’s position—and the U.S. Supreme Court language upon which it is based—is simply wrong. In fact, the “principal object” of Rule 48(a)’s “leave of court” requirement was not to protect the interests of individual defendants, but rather to guard against dubious dismissals of criminal cases that would benefit powerful and well-connected defendants. In other words, it was drafted and enacted precisely to deal with the situation that has arisen in United States v. Flynn: its purpose was to empower the Judiciary to limit dismissal in cases where the district court suspects that some impropriety prompted the Executive’s decision to abandon a case.
To be clear, there may be good reason for the district court to grant the Government’s motion to dismiss in United States v. Flynn. But the fiction that Rule 48(a) exists solely, or even chiefly, to protect defendants against prosecutorial mischief should be abandoned. This brief Essay recounts Rule 48’s forgotten history.
Sometimes it’s good to take a step back and try to look at these things through clear eyes:
https://jonathanturley.org/2020/05/14/judge-sullivan-orders-review-of-possible-perjury-charge-against-flynn/comment-page-6/#comment-1952627
“System Update with Glenn Greenwald – The Sham Prosecution of Michael Flynn”
And for those who criticize Greenwald for his views:
“The wide-ranging discussion I had on @RollingStone’s “Useful Idiots” with @mtaibb & @kthalps was one of my favorite about US politics in awhile. Here’s my 2-part answer about going on Fox & disgusting accusations of being a white supremacist sympathizer/fascist-enabler:”
https://twitter.com/ggreenwald/status/1218586409944088577
“Here’s Part 2 of my discussion about going on Fox and being a sympathizer of white supremacy and enabler of fascism.” -Glenn Greenwald
https://twitter.com/ggreenwald/status/1218586906172239873
This is just crazy.
The judge is personally affronted that the government is refusing to prosecute the case, so he is going to single-handedly prosecute Flynn himself, trying to pervert obscure rules into something he can use, even though the judiciary has no prosecutorial powers. Our system is an adversarial one, where there are two (or more) litigants/parties and the judge is to act as a referee to make sure the process is correct and fair; there isn’t supposed to be any position or standing taken by the judge, who is supposed to be neutral, legally and stance-wise.
The judge should stand back and out of the way between the two parties who have settled on a mutually agreed disposition.
Gary: “Our system is an adversarial one,”
Yup. Now the judge is one of the adversaries.
The judge is personally affronted that the government is refusing to prosecute the case
________________________________________________
No that is not what the judge is upset about.
The judge is upset because the whole case was based on lies and that both the prosecution and the defense were promoting those lies.
Flynn’s perjury is in regard to presenting a false sworn statement of facts that are the sole basis of the case. It should be obvious that although Flynn on two separate occasions swore that the facts were true and correct, Flynn was not the one who invented the false story. Mueller and the two prosecutors also appear to be guilty of lying to the court about the facts and Flynn’s previous lawyers is also likely to be guilty of misbehavior in Sullivan’s court. It is hard to imagine how a close look at the facts will not reveal that the attorneys involved are in far deeper doodoo than Flynn is.
“It is hard to imagine how a close look at the facts will not reveal that the attorneys involved are in far deeper doodoo than Flynn is.”
Anyone reading the news can see the Flynn is no longer in trouble. The chance of him spending anytime in jail is ZERO. To suggest otherwise is to show yourself as an idiot.
Where does he go to get his reputation back? How much more money must he spend on his defense? Jail is not the only issue. To suggest otherwise . . .