Retired federal judge John Gleeson was recently appointed by U.S. District Judge Emmet Sullivan to argue against dismissal of former National Security Advisor Michael Flynn and to advise him on whether the court should replace its own indictment against Flynn if he is now innocent asserts. I have been very critical of Sullivan's instructions, and especially the importation of third parties, for making arguments that neither party in a criminal case supports. Now Gleeson has filed a brief confirming the worst fears many of us had about his appointment. Gleeson attacks what he called "a trumped-up charge of government misconduct". The ultimate position taken in Gleeson's arguments would be a nightmare for criminal defendants, criminal defense lawyers, and civic libertarians. As explained below, Gleeson was previously overturned as a judge for usurping the authority of prosecutors.
Gleeson actually makes the Red Queen look like an ACLU attorney in Alice in Wonderland. After all, she only demanded "sentence first – judgment after". Gleeson waives the need to pass judgment on perjury, just judgment. However, since these arguments are viewed as detrimental to the Trump administration, many seem blind to the chilling implications.
In its 82-page filing, Gleeson specifically rejects the idea of perjury charges, which I previously criticized as a dangerous and ridiculous proposition, despite the support of many legal analysts. He states that such a step would be "irregular" and
"I respectfully suggest that the best answer to Flynn's perjury does not answer in kind. It is not what judges normally do when ordering a defendant to show why he should not be despised for an affidavit to withdraw a confession of guilt. In order to restore confidence in the integrity of the judicial process, the Court should reinstate that process on a regular basis. "
This seems like a carefully crafted way of saying that the many calls for perjury charges are as contradicting previous cases as what those same critics have alleged from the Justice Department.
However, Gleeson does not take an independent or principled position. Rather, he suggests that the court treat Flynn simply as a Perjur, punish him as a Perjur, but not bring him to court as a Perjur. He therefore advocates that the court "should consider Flynn's perjury when convicting him of the crime he is already guilty of. "
Therefore, according to Gleeson, the court should first try a defendant for a crime that prosecutors no longer believe occurred in a case that prosecutors believe (and many of us have argued) to be through their own wrongdoing was affected. He would then continue to punish the defendant by treating his support for dismissal and coercion as perjury. This is a return to "regularity" according to former Judge Gleeson. I've been a criminal defense lawyer for decades and have never heard of it. It is not normal". It is ridiculous.
Gleeson himself was criticized in the filing by Flynn's attorney, who found the Sullivan-appointed former judge not only publicly opposed Flynn's position, but was also punished as a judge on the Second Circuit for abusing his position as a tribune in a case in which it was a prosecution agreement. The defense cited HSBC Bank USA, NA, 863 F.3d 125, 136 (2d Cir. 2017), in which the Second Circuit reversed Gleeson for exaggerating his role in a way that "placed the presumption of regularity on the Upside down ".
The similarities with the present case are remarkable, including the arguments that Gleeson intervened at the prosecution's discretion. The second round took place: