"Intemperate Amicus"

On Friday morning, oral arguments were heard before the D.C. Circuit concerning former National Security Advisor Michael Flynn’s appeal on a writ of mandumus  to District Court Judge Emmett Sullivan’s decision to decline to drop the charges against Flynn despite the Department of Justice’s request after an internal investigation. During the arguments, Judge Karen LeCraft Henderson called Judge Emmet Sullivan’s attorney, John Gleeson, an “intemperate amicus.”  As Jonathan Turley describes Gleeson:

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. . . .

[A]ccording 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.


Judge Sullivan’s appointment of Gleeson to represent him in itself is extremely problematic.  Judge Neomi Rao brought this concern to light during the arguments asking a member of Sullivan’s legal team, “Where both the government and the defendant agree with the motion to dismiss, I mean, isn't the appointment of an advocate creating an Article III case or controversy where there isn't one?”

As attorney Ron Coleman noted, the appointment of Gleeson is an attempt to exercise prosecutorial authority not vested in the judiciary and inflicts constitutional harm on Flynn:

Sullivan's solicitation of Gleeson's submission here was in and of itself a gross intrusion of the judiciary into the prosecutorial function. As Judge Rao incisively noted in her questioning, who is Gleeson's "client"? The "public interest"?

— Ron Coleman (@RonColeman) June 12, 2020


No. The Constitution does not work that way.

Every minute @GenFlynn remains a defendant in a criminal prosecution which the prosecutor itself has admitted should not proceed constitutes a minute of irreparable constitutional harm being inflicted on him.

— Ron Coleman (@RonColeman) June 12, 2020

While Judge Sullivan’s legal team argued that the government had not provided sufficient reasons to dismiss the charges, Department of Justice Attorney Jeff Wall explained otherwise:

[ He stressed] that the Department of Justice provided three independent reasons for dismissal of the charge against Flynn, and that Sullivan and the amicus supporting his perspective ignored the final rationale: The DOJ believed continued prosecution was not in the interest of justice given the extraordinarily improper circumstances surrounding the interview of Flynn. No one disputes that making such considered judgments is a core Article 2 power. This alone requires the district court to grant the motion to dismiss.

At the conclusion of the oral arguments, it was unclear how the court would decide on the writ of mandamus.  What remains clear, is the continuing injustice to General Flynn.