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 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.