Today, attorney and retired judge John Gleeson filed a brief on behalf of Judge Emmet Sullivan, defending Judge Sullivan’s decision to decline to immediately drop charges against former National Security Advisor Michael Flynn at the Department of Justice’s request. Judge Sullivan’s position represents an improper encroachment on the power of the Executive. The brief is contrary to what Gleeson himself wrote while serving as a judge. In 2013, he that prosecutors have “near-absolute power” when dismissing a case unless the motion is “clearly contrary to manifest public interest.”
There are more problems with Gleeson who wrote an op-ed against Flynn before taking the case. As RNLA Member and appellate advocate Ron Coleman tweeted last month:
Of course, Sullivan is thinking that having a former USDJ handle it will burnish his presentation in terms of how it will sell.— Ron Coleman (@RonColeman) May 14, 2020
But what could *Gleeson* POSSIBLY be thinking to accept such a gig, which he obviously did before Sullivan made it official?
He will be known forever as a complete immoral hack if he goes through with it, presuming that he does so pursuant to the road map in his Op-Ed.— Ron Coleman (@RonColeman) May 14, 2020
This is an attempted judicial coup, there is no other way to describe it. @GenFlynn will be fine - we are all in very grave danger.
As former U.S. Attorney General Ed Meese wrote in a brief to the D.C. Circuit last week, the Attorney General has the responsibility to only bring charges for violations of federal law. It would be opposed to the public interest to set a precedent that proceedings against Flynn should continue for charges that the Department of Justice has determined were not warranted.
In an interview earlier this week Attorney General William Barr told Fox News’ Brett Baier:
The argument is that it's always been understood that decisions whether to pursue an individual through the prosecution process or holding them criminally accountable is vested in the executive branch and not the courts . . . And [Judge Sullivan] is essentially, in our view, trying to set himself up as an alternative prosecutor.
Beyond the issue of whether Judge Sullivan has set himself up as an “alternative prosecutor” in the Flynn case, his decision to bring charges of contempt against Flynn is also in error. As the Department of Justice’s brief to the D.C. Circuit explains:
When, like many other defendants, petitioner pleaded guilty but later asserted his innocence, he did not expose himself to prosecution for criminal contempt of court. The court lacks authority to bring its own prosecution of petitioner for two independent reasons. First, any false statements in this context are not contempt under 18 U.S.C. § 401. Second, even if petitioner’s conduct were punishable as contempt, the authority to prosecute him would lie with the Executive, not the court.
The D.C. Circuit will hear oral arguments for the case on Friday.