“Trumped-Up”: Former Judge’s Filing Is An Example Of “Irregularity” In The Age Of Rage

John_Gleeson

Retired federal judge John Gleeson was recently appointed by U.S. District Judge Emmet Sullivan to argue against dismissal of the case against former National Security Adviser Michael Flynn and to advise him on whether the court should substitute its own charge of charge for Flynn for now claiming innocence.  I have been highly critical of Sullivan’s orders and particularly the importation of third parties to make arguments that neither party supports in a criminal case. Now Gleeson has filed a brief that confirms the worst fears that many of us had about his appointment.  Gleeson assails what he called  “a trumped-up accusation of government misconduct.” The ultimate position advocated in Gleeson’s arguments would be a nightmare for criminal defendants, criminal defense counsel and civil libertarians.  Indeed, as discussed below, Gleeson was previously reversed as a judge for usurping the authority of prosecutors.

Gleeson actually makes the Red Queen in “Alice in Wonderland” look like an ACLU lawyer. After all she just called for “Sentence First–Verdict Afterward”  Gleeson is dispensing with any need for verdict on perjury, just the sentence. However, since these arguments are viewed as inimical to the Trump Administration, many seem blind to the chilling implications.

In his 82-page filing Gleeson notably rejects the idea of a perjury charge, which I previously criticized as a dangerous and ridiculous suggestion despite the support from many legal analysts.  He notes that such a move would be “irregular” and

“I respectfully suggest that the best response to Flynn’s perjury is not to respond in kind. Ordering a defendant to show cause why he should not be held in contempt based on a perjurious effort to withdraw a guilty plea is not what judges typically do. To help restore confidence in the integrity of the judicial process, the Court should return regularity to that process.”

This seems a carefully crafted way of saying that the many calls for a perjury charge are as out of line with prior cases as what these same critics allege was done by the Justice Department.

However, Gleeson is not striking an independent or principled position. Rather, he is suggesting that the Court simply treat Flynn as a perjurer, punish him as a perjurer, but not give him a trial as a perjurer. Thus, he is advocating that the court “should take Flynn’s perjury into account in sentencing him on the offense to which he has already admitted guilty.”

Thus, according to Gleeson, the Court should first sentence a defendant on a crime that the prosecutors no longer believe occurred in a case that prosecutors believe (and many of us have argued) was marred by the own misconduct.  He would then punish the defendant further by treating his support for dismissal and claims of coercion as perjury.  That according to former judge Gleeson is a return to “regularity.”  I have been a criminal defense attorney for decades and I have never even heard of anything like that. It is not “regular.” It is ridiculous.

Gleeson himself came in for criticism in the filing by Flynn’s counsel who note that the former judge appointed by Sullivan not only publicly advocated against Flynn’s position but as a judge was chastised by the Second Circuit for misusing his position to grandstand in a case involving a deferred prosecution agreement.  The defense cited HSBC Bank USA, N.A., 863 F.3d 125, 136 (2d Cir. 2017) where the Second Circuit reversed Gleeson for exaggerating his role in a way that “would be to turn the presumption of regularity on its head.”

The similarities to the present case are notable, including arguments that Gleeson intruded upon prosecutorial discretion. The Second Circuit held:

“By sua sponte invoking its supervisory power at the outset of this case to oversee the government’s entry into and implementation of the DPA, the district court impermissibly encroached on the Executive’s constitutional mandate to “take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 3. In the absence of evidence to the contrary, the Department of Justice is entitled to a presumption of regularity — that is, a presumption that it is lawfully discharging its duties. Though that presumption can of course be rebutted in such a way that warrants judicial intervention, it cannot be preemptively discarded based on the mere theoretical possibility of misconduct. Absent unusual circumstances not present here, a district court’s role vis-à-vis a DPA is limited to arraigning the defendant, granting a speedy trial waiver if the DPA does not represent an improper attempt to circumvent the speedy trial clock, and adjudicating motions or disputes as they arise.”

The Court acknowledged that there may be cases warranting great judicial involvement. However, the court found that Gleeson had acted on his own presumptions and not evidence. It also reaffirmed that there is a presumption in favor of the prosecution that he ignored:
“The district court justified its concededly “novel” exercise of supervisory power in this context by observing that “it is easy to imagine circumstances in which a deferred prosecution agreement, or the implementation of such an agreement, so transgresses the bounds of lawfulness or propriety as to warrant judicial intervention to protect the integrity of the Court.” HSBC Bank USA, N.A., 2013 WL 3306161, at *6. We agree that it is not difficult to imagine such circumstances. But the problem with this reasoning is that it runs headlong into the presumption of regularity that federal courts are obliged to ascribe to prosecutorial conduct and decision making. That presumption is rooted in the principles that undergird our constitutional structure. In particular, “because the United States Attorneys are charged with taking care that the laws are faithfully executed, there is a `presumption of regularity support[ing] their prosecutorial decisions and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.'” United States v. Sanchez, 517 F.3d 651, 671 (2d Cir. 2008) (alteration in original) (quoting United States v. Armstrong, 517 U.S. 456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996)). In resting its exercise of supervisory authority on hypothesized scenarios of egregious misconduct, the district court turned this presumption on its head. See HSBC Bank USA, N.A., 2013 WL 3306161, at *6 (“[C]onsider a situation where the current monitor needs to be replaced. What if the replacement’s only qualification for the position is that he or she is an intimate acquaintance of the prosecutor proposing the appointment?” (citation omitted)). Rather than presume “in the absence of clear evidence to the contrary” that the prosecutors administering the DPA were “properly discharg[ing] their official duties,” the district court invoked its supervisory power — and encroached on the Executive’s prerogative — based on the mere theoretical possibility that the prosecutors might one day abdicate those duties. Sanchez, 517 F.3d at 671 (internal quotation mark omitted).”

Gleeson can now argue that he found the case that he did not establish as a judge. However, his brief is filled with sweeping presumptions against the motivations and analysis of the Justice Department, even though many outsiders agree with that analysis.  The Flynn case is based on statements that even the FBI agents reportedly did not believe were intentional lies. Moreover, there is a clear basis to question the materiality element to the criminal charge.  People can disagree reasonably on both points, but that is the point.  The Justice Department has decided that it agrees that the case is flawed in line with the analysis of various experts.  The court might not agree with that interpretation and many other experts may vehemently oppose it. However, it is a legitimate legal argument that cannot be substituted by the Court for its own preferences.

None of this seems to penetrate the analysis of Gleeson who shows the same aggrandizement of judicial authority that got him reversed as a judge.  He argues for a court potentially sending someone to jail when the prosecutors no longer believe he is guilty of a crime and believe that he was the victim of bias and abuse.

Imagine what that would portend for future criminal defendants who want to argue coercion and abuse.  Their counsel would have to warn them that they could be sent to prison for a longer period for perjury even if the prosecutors agree with them.  Moreover, Gleeson believes that they should not even be afforded a trial as perjurers, just treated as perjurers.

That is being claimed in the name of “regularity.”  Unfortunately, such analysis has become all too regular in this age of rage.

Here is the filing: Gleeson filing

401 thoughts on ““Trumped-Up”: Former Judge’s Filing Is An Example Of “Irregularity” In The Age Of Rage”

  1. Reading the comments on this thread are very alarming. Anyone who has been paying attention to the case knows that the Obama – Biden administration used illegal activities of many US government agencies to target and prosecute General Flynn. Time after time after time and again and again the DOJ gave false information about the documents available. The prosecutors threatened to bring charges against the defense legal counsel if Flynn withdrew his plea. The defense legal firm did not inform Flynn of their separate negotiations with the DOJ. Sullivan has been aware of the DOJ threat to prosecute the son. Where is that FBI original 302 that was created by the interview agent but altered by Strozk. Of course the DOJ prosecuting attorneys withdrew from the case when the charges were dropped. They knew that their illegalities were going to be exposed.

    For a good list of some of the irregularities in this prosecution take a few minutes to read this article:
    https://www.theepochtimes.com/flynn-case-85-lies-contradictions-oddities-and-unusual-occurrences_3382308.html#

    The defense legal firm not only sold him out with bad advice, they continued to pretend to represent him until they got every last cent of his savings and sent him to bankruptcy. Eric Holder and his cronies must has been patting themselves on the back for a job well done as Flynn was thoroughly ruined while their sharks were well fed. I believe that Sullivan

    This case should be well noted in every law school ethics class. All of the participants involved in this miscarriage of justice were lawyers. I do not know if the RICO statutes can be applied by an individual but I hope Sidney Powell can give that defense legal team a good dose of justice on behalf of General Flynn. The only reason for Sullivan to consider not dismissing the case is because he somehow got his share in some way.

    1. There are some who allege a certain Judge has had some very questionable, possibly even corrupt dealings with a recently deceased Congressman from Baltimore. One specific allegation had to do with artworks currently hanging in his home office that he did not have have a clear chain of ownership to. Something about the Judge “looking after” the artworks because “who is going to search a Federal Judges house?”. Then there is the Judges appalling son and his psychopathic and sadist actions with a lady friend. Big cover up and pay off over that. Or the same son getting netted in a multi state pedophile sting. Some judges are compromised and if asked will make decisions in favor of those they owe.

  2. Twitter BIAS in ACTION. Check out today’s Twitter sidebar where all day long under the banner “US News” they have made sure to keep showing a photo of Barack Obama next to the Headline: “People are expressing their appreciation for former president Barack Obama”…..Twitter has manipulated the feed so that all you see is this “news” of “people expressing their appreciation for Obama”…..and this “news” with photo of Barack O’s smiling face has been on the Twitter sidebar ALL DAY LONG.

    Why you might ask, would this be “trending news”? Random people on Twitter expressing their appreciation for Obama on today of all days? That’s news? No, it’s not.

    Because the “news” is that today is President Trump’s birthday and Twitter is blatantly suppressing this “news” of the “appreciation” tweets being expressed for President Trump on his birthday.

    Biased much Twitter? They squash Trump’s favorable trending “news” only to keep Barack Obama’s face planted on the sidebar All Day Long. That blatant “news” manipulation by Twitter. Surprise surprise. Fake news is at it again.

  3. The persecution of Flynn should have everyone, right and left, shaking in their shoes. My – admittedly rudimentary – understanding of the American justice system is that it is intentionally skewed in favor of the defendant. The blindfolded woman holding scales is a kind of universal mother who wants to find some reason, however flimsy, to let the defendant off the hook. The goal of our justice system is not so much to punish the guilty as it is to defend the innocent. We see the opposite happening in the Flynn case and that is absolutely terrifying in terms of the precedent that is being set. Maybe I have misunderstood the justice system or oversimplified it, but to me, with all the absolutely terrifying things that are happening, the Flynn case is by far the most terrifying because of its implications for the rest of us. Leaving everything else aside, Judge Sullivan’s initial rejection of pro-Flynn amicus curiae briefings should have automatically ruled out his actively seeking out amicus curiae briefings from anti-Flynn types and that’s what the Appeals Court should have said, instead of doing a Pontius Pilate as they appear to have done. We have a Federal Judge who has literally appointed himself judge, jury and executioner, making our entire justice system a laughingstock on the level of Communist China, and nobody seems to notice or care.

    1. “My – admittedly rudimentary – understanding of the American justice system is that it is intentionally skewed in favor of the defendant.”

      “The goal of our justice system is not so much to punish the guilty as it is to defend the innocent.”

      Your understanding is perfect: if one’s own actual innocence is not a sufficient shield from persecution, then we are all cowed into submission and we are no longer free. Understanding that is fundamental to understanding the Constitution.

      1. Uh yeah, but pleading guilty twice removes the assumption of innocence.

        This case is in sentencing phase.

        1. I LOVE IT when you say such obviously stupid things. It discredits you and your ilk. Your line of argument that pleading guilty means you are truly guilty will go over well with the black community. Keep it up!

          1. Ivan, bythebook is not wrong here. The justice system is based on assumption of innocence until proven guilty. Flynn WAS indeed proven guilty of lying multiple times. He had literally multiple charges against him. Flynn literally and on the record made a deal to admit to two charges of lying in EXCHANGE for cooperation and a more lenient sentence. I repeat. Flynn was proven to have lied to VP Pence, Trump himself stated Flynn lied.

            Lying to the FBI AFTER proof that what he stated was not what he said to the FBI is a FELONY crime. Now here’s the important part. He was no longer innocent of the charge. He was proven beyond reasonable doubt that he lied and admitted he did. He IS truly guilty. There is no ambiguity there at all. You are trying to make an argument as if you were saying George Floyd didn’t die because an officer on video is seen suffocating him for 8 minutes wasn’t doing that. The literal proof is right there and you are willfully ignoring it simply because you don’t WANT to believe it is true despite the fact that it is. Your need to believe Flynn is not guilty is no longer relevant. Reality dictates you are simply….wrong AND nuts.

            1. how does the fact the Flynn’s motion to withdrawal is based on facts that were never presented before this court fit in your world of absolutes?

              how does the fact that this judge has acted in a behavior unfitting of an impartial judge?

              a. accusing flynn of a crime of which he was never charged. declaring it, in open court, and then later “apologizing”…that alone should have be cause for his recusal…BIAS man…is it not obvious?

              b. refusing the allow the defense access to brady material even AFTER it became KNOWN the prosecution held it in secret?

              c. the secret deal the prosecutors held that is a textbook case of prosecutorial misconduct against the interests of the defendant AND the court that the judge has not even allowed to be considered?

              d. denying the defense to make additional motions that would help improve the defense?

              e. ignoring and arguing that the DOJ’s motion is somehow insufficient. It’s a gigantic volume of legally accurate reasons for dropping this case…MATERIALITY…PREDICATE!

              see the problem here….in your world of absolutes, nothing move the plea…but that’s just ridiculous and assassinates the very spirit and purpose of justice…that the facts of a case guide determinations.

              this judge has seen to it, to not only ignore the facts of these case, but his conduct suggests he has no business running any court!

              think about the harm in this case, and what this means to any other?

              think about it clearly.

              you are pressured under threat of persecution, family included, financially ruined…so you take a “deal”..no with proper discovery late in the hour, new facts show the entire investigation and the charges are corruptly fraudulent….

              in your world, the judge just simply says

              too bad mister, you should have known better to take a dirty deal?

              that’s just ridiculous.

              are you really sure this is the line you are willing to represent?

              1. Let’s look at Brian Banks, a high school football player who pled guilty to raping a classmate.

                The guy’s attorney advised him he’d get a harsher sentence if found guilty at trial, and that as a strapping, young black athlete his chances at trial were not so hot.

                After he served his sentence, his accuser reached out to him to “let bygones be bygones” (the sheer audacity of doing that boggles the mind). He arranged to get together with her, recorded the discussion, and lucked out. She admitted she had lied about the whole thing and apologized.

                (Banks now works with the Innocence Project, I believe.)

                These boneheads who agree with Sullivan and Gleeson are essentially saying Brian Banks is factually guilty because he pled guilty, and therefore he should not have had his guilty plea vacated.

                Not only that, but he should go back to prison for perjury for falsely asserting to the court that he was innocent of the crime.

                You know, since a guilty plea always = factual guilt, amiright?

        2. Prosecutors, with the effectively unlimited resources of the Federal government, committed serious misconduct. They (a) with-held exculpatory Brady material and (b) engaged in a plea deal for Flynn’s son that was not admitted to Sullivan’s court.

          Had they provided the Brady material, as the law requires, Flynn would have been provided the needed evidence to win in court, and thus would not have pleaded.

          They pursued Flynn and his son until Flynn’s resources were exhausted. The father pleaded to save his son.

          The original case was based on the allegations that the conversations with Amb. Kislyak involved the sanctions imposed by the Obama administration. The now released conversations had to do with expulsions of Russian operatives, a technical difference worth noting because sanctions carry much higher import than do expulsions. Moreover, the conversation was a reasonable response by the incoming administration, to avoid a ratcheting up of tension.

          To say “he plead guilty twice” so he cannot be innocent is a supercilious statement blind to the reality of the malfeasance of a politicized Main DOJ.

          1. “They (a) with-held exculpatory Brady material and (b) engaged in a plea deal for Flynn’s son that was not admitted to Sullivan’s court.”

            a) Here are links to the Brady material: https://www.lawfareblog.com/flynn-redux-what-those-fbi-documents-really-show
            What do you think is significant in those?

            b) The link above also provides quotes from Flynn’s lawyers that the DOJ did *not* actually “engage[] in a plea deal for Flynn’s son,” and to my knowledge, Flynn has never produced any evidence of such a “plea deal.”
            Please link to what you’re taking as evidence of “a plea deal for Flynn’s son.”

            1. “What do you think is significant in those?”

              You like the idea of being all three, judge, jury and prosecutor. Now you want to add what information you think the defense needs. This character has no idea of how the judicial system is supposed to work.

              The defense will determine what is or isn’t significant and the defense was denied relevant data. On that alonethe innocent Flynn should be released. We are still waiting for those words of Flynns that were in the FBI memo that you told us to look up. You lied and you keep on lying.

  4. That brief is revolting in the way the SoF mentions anything about the FBI’s misconduct in getting Flynn to lie. That’s the whole issue! Just ignored!! And, there’s all this history of 48(a) but none of it talks about prosecutorial misconduct in procuring the plea or conviction. This is beyond surreal.

    1. That brief is revolting in the way the SoF mentions anything about the FBI’s misconduct in getting Flynn to lie.
      _________________________________________________________

      The FBI said that Flynn did not lie. The two agents that interviewed Flynn are on the record as saying they believed Flynn was not lying. The FBI said they found no crime with which Flynn could be charged.

      https://www.cnn.com/videos/politics/2017/02/16/fbi-michael-flynn-fbi-no-charges-lemon-sot.cnn

  5. Amusing info on Trump’s dysfunctional campaign.

    On Juneteenth he’ll have another of his lily white rallies in Tulsa, location of the worst race riot in American history when hundreds of blacks were killed and their well off main street was burned to the ground.

    Why Oklahoma? Is he in trouble there?

    He’s spending ad money on DC and northern Virginia, where he has no chance in hell of winning, apparently because he wants to see them when he watches TV all day.

    Brilliant.

    1. right. good; feel free to think trump is finished. you can relax now! you are confident in your own opinions, and you believe biden will win. yes, yes,, you’re always right, and you can relax. take it easy! just let it unfold Democrats. easy sailing! have some donuts, smoke a bowl, book your vacation at the CHAZ

      1. Gee Kurtz, I am very conservative in my predictions, unlike some here – cough, cough! I”m just enjoying myself on a weekend with some clownish behavior by the prez.

  6. “The problem with that claim is that the FBI needs to have a potential crime as a pretext for the interview.”

    No, it doesn’t. There was an open counterintelligence investigation, and the interview was carried out for CI purposes. Here’s a detailed discussion that quotes relevant DOJ documents about both predication in general and the predicate for Flynn’s interview:
    https://www.lawfareblog.com/why-flynn-interview-was-predicated

    1. The FBI satisfied their needs long ago and continued in their quest. They didn’t even bother to alert the Presidential candidate and incoming President. Check your dates.

      You flip from one item to the next hoping some will stick. You are a liar.

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