Retired judge John Gleeson filed an amicus curiae, or friend of the court, brief in the Michael Flynn criminal case yesterday. Presiding Judge Emmet Sullivan had appointed Gleeson as amicus after the government filed a motion to dismiss the criminal charge against Flynn, directing Gleeson “to present arguments in opposition to the government’s Motion to Dismiss” and to “address whether the Court should issue an Order to Show cause for why Flynn should not be held in criminal contempt for perjury.”
Flynn had pleaded guilty to lying to the FBI during a Jan. 24, 2017, interview about his late-December 2016 conversations with Russian Ambassador Sergey Kislyak. Later, though, after changing attorneys, Flynn moved to withdraw his guilty plea, arguing the special counsel’s office had threatened to target his son if he did not plead guilty and claiming that his prior counsel was ineffective.
While that motion was pending, Attorney General William Barr directed Missouri-based U.S. Attorney Jeff Jensen to conduct an independent review of Flynn’s prosecution. After discovering Robert Mueller’s team had withheld material evidence from Flynn’s attorneys, and determining that the FBI lacked a legitimate investigative purpose to interview Flynn, Jensen recommended the charge against him be dismissed.
Rather than put an end to Flynn’s three-year nightmare, however, Sullivan announced he would accept amicus curiae briefs from outside parties. Sullivan also appointed Gleeson to argue against dismissal of the charge, even though Gleeson had just published an op-ed condemning the Department of Justice’s move. Flynn’s attorney, Sidney Powell, asked the D.C. Circuit Court of Appeals to intervene and order Sullivan to dismiss the case. Briefing in that case ended Wednesday, and oral arguments on Powell’s petition are set for Friday.
But those impending proceedings didn’t stop Sullivan’s ploy, and in his 70-plus-page brief, Gleeson more than gave the longtime federal judge exactly what he wanted: a political hit on President Donald Trump that the press could parlay into a new faux scandal. Or, as Powell told me, it was a “pathetic, result-driven” brief, both “flatly wrong and ridiculously predictable.”
But as predictable as the finished product was, it was still appalling to see the federal judiciary co-opted by the Resistance.
Here are the more shocking details:
1. Amicus Curiae Is a Friend of the Resistance as Well
The same day the government filed its motion to dismiss the criminal charge against Flynn, the Washington Post ran an op-ed co-authored by Gleeson, in which Gleeson made clear his view that the charge should not be dismissed. “The record reeks of improper political influence,” Gleeson wrote, failing to recognize that the source of the stench was really the special counsel’s office.
Notwithstanding Gleeson’s clear bias, two days later, Sullivan appointed him amicus curiae. Yesterday, we learned from the brief the names of the attorneys Gleeson brought on board to argue against the Trump administration’s position. First, there was David O’Neil, a former attorney in the Obama administration and now with the D.C. firm Debevoise & Plimpton.
As the lawyer who tweets as TechnoFog highlighted yesterday, O’Neil was also an attorney for former Acting Attorney General Sally Yates during her congressional testimony. Given the current investigation of the investigators being handled by Connecticut U.S. Attorney John Durham, and Yates’ involvement in aspects of the Crossfire Hurricane probe, O’Neil participating in an attempt to thwart the dismissal of the criminal charge against Flynn leaves its own unpleasant odor.
Another bothersome detail: O’Neil made a nice (monetary) campaign contribution to Biden for President, as did another lawyer on Gleeson’s brief, Marshall Miller of the firm Kaplan Hecker & Fink. Also on the brief from Kaplan Hecker & Fink is Joshua Matz, whose firm biography notes that “he recently rejoined the firm from the House Judiciary Committee, where he served among counsel for the impeachment and trial of President Trump.”
Just as the special counsel’s office was stacked with politically biased prosecutors, the same scheme is playing out in Sullivan’s courtroom.
2. Gleeson Pads the Brief with Anti-Trump Talking Points
Although local court rules limit the length of amicus curiae briefs to 25 pages, Gleeson submitted a 72-page document, along with a motion requesting leave to file the oversized brief. Sullivan granted that motion, over the objection of Flynn’s attorney, allowing the amicus curiae ample space to rehash the Russia collusion hoax and to attack Trump.
Gleeson’s legal team also uses many of the themes the Resistance pushed over the last four years. For instance, in discussing Flynn conversations with the Russian ambassador, the amicus curiae brief heads the section “Flynn Makes Backchannel Requests of Russia,” suggesting Flynn acted inappropriately when, as a member of the Trump transition team, he spoke with Kislyak.
3. Amicus Intentionally Confuses Sanctions with Expulsions
When Flynn pleaded guilty to making material false statements to the FBI, he agreed with the government’s claim that he had “called the Russian Ambassador and requested that Russia not escalate the situation and only respond to the U.S. Sanctions in a reciprocal manner,” but had denied making that requests when interviewed by FBI agents. In seeking to withdraw his guilty plea, Flynn told the court that to this day he does not remember whether he had discussed sanctions with Kislyak.
The recently declassified transcript of Flynn’s call with Kislyak, however, established that Flynn did not in fact discuss sanctions with Kislyak. Rather, Flynn spoke of the possible expulsions of Russian diplomats. Yet the Statement of Offense filed with Sullivan, and signed by former lead prosecutor Brandon Van Grack, falsely stated that Flynn had asked Kislyak to only respond to U.S. sanctions in a reciprocal manner.
While Flynn did not have access to the transcript at the time he pleaded guilty, Gleeson had the transcripts before filing the amicus curiae brief and in fact attached the transcript as an exhibit. Yet Gleeson quotes from the inaccurate Statement of Offense Flynn’s supposed request that Russia “only respond to U.S. Sanctions in a reciprocal manner” — something the transcript proved never happened.
More troubling, however, was that Gleeson’s legal team then excerpts portions of the transcript related to Flynn’s conversation about the expulsion of Russian diplomats and inaccurately presents those discussions as if they concerned sanctions.
A true friend of the court would have apprised Sullivan that Mueller’s team made a mistake and that the Statement of Offense was inaccurate: Flynn had not discussed sanctions and thus had not lied to the FBI about sanctions. Instead, Gleeson’s brief misrepresents the transcript.
4. Gleeson Omits Many Facts
With the oversized brief, Gleeson had plenty of room to discuss the facts that led the government to move to dismiss the criminal charge against Flynn, but here the amicus curiae falls silent.
Gleeson makes no mention of the appointment of U.S. Attorney Jensen to review the case against Flynn. He makes no mention of Jensen’s statement that “through the course of my review of General Flynn’s case, I concluded the proper and just course was to dismiss the case. I briefed Attorney General Barr on my findings, advised him on these conclusions, and he agreed.” Gleeson ignores the many pieces of exculpatory evidence Jensen uncovered that supported the decision to dismiss the case against Flynn.
5. Amicus Brief Signals Even More Burying of Heads
By omitting an adequate discussion of the newly discovered evidence, Gleeson’s team lays the groundwork for arguing that the government’s reason for dismissing the criminal charge against Flynn was “pretextual.”
As the amicus lays out, the government sought to dismiss the charge, concluding it could not prove that Flynn “knowingly and willfully made a false statement” or that the false statement was “material.”
Such claims are “preposterous,” Gleeson claims, “for starters — and most unusually — they are directly and decisively disproven by the Government’s own briefs filed just months ago in this very proceeding.”
But Gleeson utterly ignores the fact that in the interim, a new prosecutor reviewed the file and discovered evidence previously withheld from both Flynn and the court. That evidence established that the statements, even if false, were not material.
Specifically, Jensen uncovered a closing memorandum that showed the FBI had determined to close the counterintelligence investigation into Flynn, but that it was mistakenly kept open. After learning of Flynn’s conversations with Kislyak, FBI management directed agents to keep the investigation into Flynn open, and then agents questioned Flynn on those conversations Jan. 24, 2017, at which time Flynn supposedly lied to the agents.
Here a second piece of evidence previously withheld proves important: handwritten notes of Andrew McCabe and the now-retired Assistant Director of the FBI Counterintelligence Division Bill Priestap. Those notes revealed the FBI did not question Flynn as part of their counterintelligence investigation. Instead, Flynn was set up in a perjury trap.
6. Amicus Curiae Adds Unsolicited Advice
In arguing against dismissing the charge, Gleeson claims the government’s position, that it could not prove Flynn knowingly lied to the FBI, is “even more implausible than its claim regarding materiality.” Why? Because Flynn pleaded guilty, Gleeson stresses.
Flynn, though, has moved to withdraw his guilty plea, based on ineffective assistance of counsel and other grounds. Those motions predate the additional evidence recently provided to Flynn’s defense team, bolstering his motion to withdraw his guilty plea.
So how does Gleeson handle that issue? He tells Sullivan that Flynn’s motion to withdraw the plea “will fail.”
Of course, that is not for Gleeson to decide. It isn’t even for Gleeson to opine on, but opine he does, yet without addressing the merits of Flynn’s motion to withdraw the guilty plea. Instead, Gleeson rests on platitudes such as that guilty pleas are “grave and solemn act[s],” and that they can only be withdrawn upon a showing of “fair and just reason.” True, but Flynn has more than “fair and just reason” to withdraw his plea.
7. Gleeson Bashes Trump
Gleeson also advises Sullivan to reject the government’s motion to dismiss based on “gross prosecutorial abuse.” To support this claim, Gleeson first details Flynn’s role as a “crucial political ally to President Trump” and then repeats Comey’s congressional testimony concerning “an unusual one-on-one conversation with [Trump] in the Oval Office,” during which the president purportedly said “I hope you can see your way to letting this go, to letting Flynn go.”
The amicus curiae then provides a catalogue of Trump’s various public commentary, noting that Trump has “tweeted or retweeted about Flynn at least 100 times from March 2017 to present.” For good measure, Gleeson quotes several of these tweets. Then, after quoting an article from the Resistance’s propaganda arm, Lawfare, Gleeson quotes Barr’s statement that Trump’s “public statements and tweets” about pending cases “make it impossible to do my job and to assure the courts and the prosecutors in the department that we’re doing our work with integrity.”
Gleeson must have missed Barr’s other statement about the Flynn case, though: Barr told CBS’s Catherine Herridge that he was not “doing the president’s bidding in General Flynn’s case,” he was “doing the law’s bidding,” and his “duty under the law.” Yet, the amicus curiae brief pronounces the decision to dismiss the charge as one based on Flynn’s status as “a friend and political ally of President Trump.” In fact, it was that very status that doomed Flynn under the Obama administration and the holdover political appointees and career employees in the DOJ.
8. Flynn Committed Perjury, but Play Fair
Sullivan also asked Gleeson to weigh in on whether Flynn should be prosecuted for perjury. Gleeson concludes that Flynn committed perjury, but then feigns a high-ground attitude and suggests Sullivan not seek to prosecute Flynn, but instead consider the perjury at the sentencing stage.
Gleeson’s analysis is lacking, though, on the perjury angle, and it is unheard of for a defendant seeking to withdraw a guilty plea to be charged with perjury. Further, if Sullivan were to sentence Flynn to a longer term of imprisonment based on his purported perjury, that sentence would be subject to attack.
9. Gleeson Ignores Separation of Powers Problem
For all the problems with the amicus curiae’s presentation of the facts, it isn’t much better on the law. Gleeson’s legal arguments focus mainly on dicta and distinguishable cases, while ignoring the controlling circuit precedent and constitutional principles of separation of powers.
Gleeson’s brief, however, was never for the law — it was always for politics and the press. It will be the D.C. Circuit that decides the legal question of the power for a federal court to thwart the will of the executive to dismiss charges. With Friday’s expedited hearing on Powell’s motion, an answer will be coming soon.