This is stunning stuff — it reads like something out of an action novel. But actually they are passages from a 30-page brief issued yesterday, by retired federal judge John Gleeson.
Gleeson Relentlessly demolishes the Trump/Barr attempt to dismiss the Perjury conviction of former General Michael Flynn.
[Background: “Flynn pleaded guilty in December 2017 to lying to the FBI about his contacts with Russian ambassador Sergey Kislyak in the weeks before the 2016 election. Later, after cooperating with special counsel Robert Mueller for nearly two years, Flynn moved to withdraw his guilty plea and allege he was set up by the FBI and coerced into pleading guilty by rogue prosecutors.
In May, the Barr Justice Department . . . moved to dismiss the case, arguing to judge Judge Emmet Sullivan that the FBI had no legitimate reason to interrogate Flynn when Director James Comey sent two agents to the White House to discuss his conversations with Kislyak in January 2017.”
But Sullivan refused to sign the dismissal request. In this Sullivan, a Ronald Reagan appointee, lived up to what the New York Times called a renowned “independent streak.” Instead he appointed Gleeson to challenge it and scheduled a hearing on the issue. The issue remains unresolved. Gleeson’s white-hot brief will up the ante. See for yourself:
REPLY BRIEF FOR COURT-APPOINTED AMICUS CURIAE (Excerpts)
Dated: New York, NY September 11, 2020
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. . . .
In a case in which the Government is trying to give special treatment to a criminal defendant because he is favored by the President, the Court would send an important message about the rule of law by refusing to accord special treatment to that defendant’s perjury. . . .
Ultimately, the Government’s efforts to dodge the key facts and legal issues applicable to Flynn’s lies under oath are emblematic of its broader effort to scuttle this case, in a stark abdication of its own Mission Statement: to “seek just punishment for those guilty of unlawful behavior[,] and to ensure fair and impartial administration of justice for all Americans.”10
The Court can now restore fairness and impartiality to the administration of justice by denying the Government’s motion and accounting for Flynn’s perjurious conduct at the sentencing stage.
But as the Government is loath to admit here . . . in the extraordinary case, where the Justice Department seeks to mislead the Court and the public about its reasons for dismissing criminal charges, and where clear evidence indicates that corrupt motives have undermined the Justice Department’s proper role, this Court has an independent obligation to guard against such abuse. That duty . . . is grounded firmly in Article III of the Constitution.
The record before the Court demonstrates conclusively that this case is extraordinary. No other evidence is necessary or need be relied upon to reach that conclusion. Yet this motion does not arise in a vacuum. Each passing day brings troubling indications of improper interference with criminal cases involving the President’s personal and political associates.
Most notably, there is now concrete evidence of another prosecutorial decision infected by “heavy pressure from the highest levels of the Department of Justice . . . based on political considerations.” . . .
This prosecutorial decision concerned the Government’s sentencing recommendation for Roger Stone, another well-connected political ally of the President who committed serious crimes. There, as here, the President publicly assailed the Department of Justice for pursuing the Case . . . .
And there, as here, the Department of Justice succumbed to that corrupt pressure— though only after all four career prosecutors resigned from the case. As one of those career prosecutors later testified, senior officials at the Department of Justice exerted “significant pressure” to go easy on Stone, against the record of the case, customary prosecutorial practice, and departmental policy . . . .
This occurred “because of [Stone’s] relationship to the President,” id., and “because the U.S. Attorney”—who also signed the Rule 48(a) motion in these proceedings—“was ‘afraid of the President. . . .”11 (Footnote: Perhaps those officials had reason to worry: the President recently fired a prominent and well- respected U.S. Attorney who was investigating his associates. See Paul Le Blanc et al., White House Admits Trump Was Involved in Firing of Top US Attorney After Trump Claimed He Wasn’t, CNN (June 22, 2020) . . . .)
Of course, those examples merely provide context. In resolving the Government’s request for leave, the only evidence that ultimately matters is the record I have outlined above: a record replete with patently pretextual attempts to justify what is plainly a corrupt political errand for the President.
Given this evidence, the Court should not allow itself to become an instrument of the Government’s abuse of the judicial process or the public trust. . . the Court can—and should—deny the Government’s motion, adjudicate any other pending motions, and then proceed to sentence Flynn for his crime. . . .”
— Retired federal judge John Gleeson, court-appointed amicus Curiae