In 2009, shortly after clashes between Iranian security forces and protesters, the family of 19-year-old Kaveh Alipour learned that to retrieve the remains of their son, they had to pay an equivalent of a $3,000 “bullet fee” to reimburse the Iranian government for the costs of shooting Alipour. It’s a technique pioneered by the Soviets: one last pound of flesh extracted from the victim’s family as further punishment for “forcing” the state to oppress the victim.
The cruel practice recently came to mind after reading Judge Emmet Sullivan’s recent order in which he contemplates charging President Trump’s former National Security Advisor Michael Flynn with perjury and criminal contempt for pleading guilty when he was in fact innocent. To re-investigate Flynn, the judge is appointing a “friend of the court.”
According to the prosecution’s own motion, Flynn pleaded guilty based on incomplete information. The prosecution appears to have illegally withheld evidence of Flynn’s innocence. We have every reason to believe that the former Department of Justice prosecutor on the case, special counsel alumni Brandon Van Grack, withheld the material willfully or intentionally in apparent violation of the rules of ethics and the judge’s order.
Van Grack, not Flynn, appears to have exhibited willful contempt of the judge’s order requiring the government to turn over all exculpatory information. Van Grack also falsely certified to the court that he had turned over all exculpatory evidence.
Flynn was accused of the crime of lying to the FBI. As I’ve previously written, to prove a violation of the only thing Flynn was charged with, 18 U.S.C. §1001, the government must show that Flynn’s lie was (1) intentional, and (2) material. It can show neither, and it appears to have unlawfully withheld clear evidence showing that the only purpose of interviewing Flynn was to “get him to lie” in order to criminally prosecute him.
The judge wrote, “the court exercises its inherent authority to…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.” At first, the meaning eluded me. Flynn was charged with lying to the FBI, not perjury. The judge seemed to be taking on the prosecutorial role (which, as Margot Cleveland pointed out, is unconstitutional).
That’s part of it, but it’s actually much worse than that. The judge means that he’s considering charging Flynn with perjury for pleading guilty in the face of a rigged prosecution. In other words, the judge is thinking of sending Flynn a bill for the metaphorical bullet used to destroy Flynn’s career and deny him justice.
Further indication of the judge’s intention may be found in who he picked to draft the bill for the metaphorical bullet. For this task, he selected retired judge John Gleeson. Gleeson just penned an opinion piece in the Washington Post about this case. In it, he wrote,
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 record reeks of improper political influence….this is the rare case that requires extra scrutiny…Fortunately, the court has many tools to vindicate the public interest. It can require the career prosecutor to explain why he stepped off the case, … It can appoint an independent attorney to act as a ‘friend of the court,’ ensuring a full, adversarial inquiry.
This is tantamount to a spectator successfully working the ref in the middle of a game. Actually, it’s like a ref inviting one team’s fan onto the field to help referee the game.
It’s not fair to the parties to learn their judge is being influenced by outside briefing to which they have not had an opportunity to respond. The judge clearly read the op-ed and was influenced by it because he adopted the suggestion to the letter, including appointing the author of the op-ed.
Gleeson made it clear in his op-ed that he wants Flynn to lose. Now he has a perch from within the case to pursue that objective.
So now, rather than Van Grack being punished for unfairly hiding evidence and rigging the prosecution, his victim is being sent a bill for the bullet. If Flynn wrongly pleaded guilty to the charge, the judge will sanction Flynn with a “perjury” charge under contempt powers.
Gleeson has already said what he will do. He will use his appointed position to give the disgraced Van Grack an opportunity to throw rocks at the ethical prosecutors who stopped him. Gleeson will find (because he already has) that the prosecution dismissed the Flynn case for “political reasons” and ignore the abundant evidence of prosecutorial misconduct.
But before he does any of that, the deep state will do what it always does: protect itself by cloaking the misconduct in another “investigation,” from which evidence is strategically leaked. It could take months to bring the Flynn case to a close as Gleeson romps about.
Cleveland was not wrong in decrying the court’s unconstitutional usurpation of executive prosecutorial authority. It’s just much worse than that. Flynn is being made to pay again for his tormentors’ misconduct.