The Highly Anticipated Brief From Judge Gleeson on the Flynn Case -- Mueller Report Redux

FILE - In this Dec. 1, 2017, file photo, former national security adviser Michael Flynn for President Donald Trump leaves federal court in Washington. Robert Mueller’s Russia investigation is illustrating an age-old truism: It pays to cooperate with the government. The few people who so have cooperated with the special counsel’s office have enjoyed perks including the prospect of reduced prison sentences. Flynn flies cross-country to stump for a California congressional candidate and books a speaking event in New York. (AP Photo/Susan Walsh, File)

Retired federal court Judge John Gleeson, appointed as amicus counsel by Judge Emmet Sullivan to take up a position opposing the Motion to Dismiss filed by the Department of Justice, has now filed his brief.  No surprise in the fact that he concludes that Judge Sullivan has the authority to deny the DOJ motion and proceeding directly to sentencing Gen. Michael Flynn on the charge of having made false statements to the FBI.  I say that is “no surprise” because that is what Judge Sullivan appointed him to do.

He also recommends that Judge Sullivan not pursue any separate charges against Gen. Flynn with regard to “perjury” in connection with Gen. Flynn’s most recent court filings to set aside his guilty plea, and asking for dismissal of the charges against him.  Rather than pursue new charges on that basis, Judge Gleeson recommends only that Judge Sullivan take Gen. Flynn’s conduct into consideration in determining an appropriate sentence for the crimes to which he has already admitted by having pleaded guilty.

The brief filed by Judge Gleeson is in excess of 80 pages long.  For me to write a comprehensive take-down of what he has filed would take me at last 12,000 words, and a week to research and write.  That’s what I would do if I was involved in the case and preparing a response.  I can’t do that here.

Instead I’m going to simply isolate a few areas in the brief that I find worthy of comment, and deal with them in separate articles.

So, in referring to what’s “worthy of comment” I should begin with my first “hot take” on Twitter this morning when I called the brief “trash” — and then got critical.

A couple observations right off the top based on my LIMITED analysis so far — which I hope to build upon in later articles.

For the “Factual Basis” Judge Gleeson includes references to 1) media reporting and accounts, 2) the Inspector General’s report on Four FISAs, and 3) the Intelligence Community Assessment of Russian interference in the 2016 election.

As for the media, Gleenson references articles that are sourced to anonymous former government officials, which we now know were mostly former Obama Administration officials who fed the entire false fantasy “Trump-Russian” collusion narrative to gullible and willing anti-Trump media for the past nearly four years.

As for the IG Report, Gleeson never addresses the issue that the IG’s ability to collect factual information was limited by his lack of authority to compel answers from anyone not currently employed by the DOJ, and by the fact that the IG lacks subpoena or GJ authority to collect both documentary and testimonial evidence.  The result is that the IG’s “window’ into events surrounding the investigation of the Trump campaign and individuals such as General Flynn was always limited — and there is absolutely NO DOUBT that DOJ has more information available to it than the information reported in the IG Report that Gleeson relies upon.

Finally, as for the IC Assessment, this was a product commissioned by former CIA Director John Brennan, hastily assembled in the closing days of the Obama Administration, which reached certain “conclusions” that have been determined to not have been factually accurate.  When the Mueller Report came out finding that no Americans had assisted the Russian efforts to interfere in the 2016 election campaign, and there was no evidence of “collusion” between anyone in the Trump Campaign and the Russian Government, John Brennan’s reaction was as follows:

Former CIA Director John Brennan said Monday that he “suspected there was more than there actually was” in regard to collusion between the Trump campaign and Russia in the 2016 election.  “I don’t know if I received bad information, but I think I suspected there was more than there actually was…. I am relieved that it’s been determined there was not a criminal conspiracy with the Russian government over our election.”

Yet the IC Assessment that he commissioned and oversaw, finding the existence of such nefarious activity, is what Judge Gleeson relies upon for some of the facts he sets forth in his briefing.

The Historical Basis of Rule 48(a)

DOJ has moved to dismiss the Flynn prosecution under Fed. Rule of Crim. Proc. 48(a), which provides for such motions by the government “with leave of court” — meaning with the court’s permission. The crux of the dispute concerns the extent of the court’s discretion to say “No” to such motions.

Judge Gleeson stakes a great deal of his reliance on the “historical context” for the creation of Rule 48(a)’s “leave of court” language on a law review article written by Thomas Frampton, which is scheduled to be published in the Stanford Law Review in the Fall of 2020.  This article has been bouncing around the anti-Flynn advocates on the internet since DOJ made its motion.  And the current “Draft” of the article, which is what Judge Gleeson cites to in his brief, says right at the top that Government’s motion in the Flynn case is a central aspect for why the article exists.  I’m not saying Frampton wrote the article because of the Flynn case — I think its clear that it was a work in progress for a much longer period — but it is clear that the current version of the article is written with the intention to bolster the idea that Judge Sullivan has the authority to deny the motion based on the history of the language of Rule 48(a).  Gleeson cites the Frampton article 7 different times, but his citations are to Frampton’s words, not the words of a Court or Judge.  Examples of Frampton’s statements which Gleeson cites/quotes include the following:

Rule 48(a) was designed to “guard against dubious dismissals of criminal cases that would benefit powerful and well-connected defendants.”

This text [“leave of court”] reflects a considered judicial effort to “guard against dubious dismissals of criminal cases that would benefit powerful and well-connected defendants.”

The Court . . . armed the district judge with a powerful tool to halt corrupt or politically motivated dismissals of cases.

In contrast, separation of powers concerns have significantly less force in the post-plea setting, where “all that is left for the trial court to do is sentence the defendant, a task that is firmly in the district judge’s wheelhouse.”

Those are all the words of a Harvard Law School “Fellow” and “Lecturer” who is the author of the article — not a court or a judge.  While law review articles are sometimes “enlightening”, they do not carry any significant weight as legal authority.  The fact that Gleeson makes repeated use of the Frampton article is an indicator as to the weakness of his argument on this point.

Finally — for this article — I want to call attention to Gleenson’s citation to a Fifth Circuit Court of Appeal Decision which Gleeson describes as “influential” — US v. Hamm.

Hamm was an en banc decision, which means that all active judges in the Fifth Circuit participated in the case, and the outcome reflected the consensus of all those Appeals Court Judges.  This is also noteworthy because Hamm comes AFTER the case of US v. Cowan, another Fifth Circuit case one that figures very prominently in anti-Flynn argument that Judge Sullivan should deny the motion.  More on Cowan in another article.

As for Hamm, here is what Judge Gleeson has to say regarding its significance:

As the Fifth Circuit framed the issue in an influential opinion, “we must balance the constitutional duty of government prosecutors, as members of the
Executive Branch, to ‘take care that the laws (are) faithfully executed’ with the constitutional powers of the federal courts.”

Judge Gleeson never addresses WHAT ELSE the Fifth Circuit had to say in Hamm.

Just to set things up — Hamm involved several defendants who cooperated in the investigation and prosecution of a large drug smuggling conspiracy after they were arrested and charged.  Their cooperation was highly productive, and came at great risk to their own well-being.  The defendants had pleaded guilty, and their sentencing was postponed pending completion of their cooperation.  While the cooperation was underway, taking in to consideration all they had done and risked, the prosecutor made deals with each of the defendants about the length of sentences they would receive.  The prosecutor represented to the defendants that the judge had been informed and agreed to the sentences — but that was not the case.  The judge was unaware of the agreements.

When the defendants appeared for sentencing the judge announced that he was unaware of the agreements and did not consider himself to be bound by them.  He then proceeded to sentence the defendants to much longer terms that were expected.  In response the government moved to dismiss the cases — AFTER SENTENCING — based on the fact that the cooperation had been so productive, so longstanding, and at great personal risk to the defendants well being.  The trial judge denied the motion, and set forth the reasons for his disagreement with the justification made by the prosecutor in moving to dismiss.

The en banc Fifth Circuit Court reversed the convictions and ordered the trial court to dismiss the charges — granting the Rule 48(a) motion.  Among the comments made by the Fifth Circuit were the following:

The [Supreme] Court [in Rinaldi] noted that the principal object of the leave of court requirement was apparently to protect a defendant from prosecutorial harassment. The Court did not decide whether a trial court has discretion to deny a prosecutor’s motion to dismiss which has the consent of the defendant…  The Court did not reach that question in Rinaldi, however, since even if it assumed that the trial court could deny the prosecutor’s motion when it disserved the public interest, the prosecutor’s actions in the case could not be fairly characterized as such a disservice.

“ … the trial court, in extremely limited circumstances in extraordinary cases, may deny the motion when the prosecutor’s actions clearly indicate a “betrayal of the public interest.”

[T]his [Hamm] is a case in which the Government … decided that it would best serve the public interest to dismiss the indictments against the appellants. Neither this court on appeal nor the trial court may properly reassess the prosecutor’s evaluation of the public interest. As long as it is not apparent that the prosecutor was motivated by considerations clearly contrary to the public interest, his motion must be granted.

Judge Gleeson never addresses this language from the “influential” Hamm decision because this language says Judge Sullivan cannot do what Judge Gleeson is urging him to do — “reassess” the DOJ evaluation of the “public interest” in moving to dismiss the Flynn case.

More to follow.

NOTE:  I left out two more quotes from Hamm that are important in looking at the dishonest way Judge Gleeson addresses — or fails to address — the decision:

The trial court also held that the prosecutor did not present sufficient factual information to show that the public interest would be served….. We disagree. The district court appears to have placed the burden on the prosecutor to show that dismissal itself would be in the public interest. The language of this court in Cowan and the Supreme Court in Rinaldi makes it clear that the motion should be granted unless the trial court has an affirmative reason to believe that the dismissal motion was motivated by considerations contrary to the public interest. As the district judge acknowledged, the prosecutor is the first and presumptively the best judge of where the public interest lies. The trial judge cannot merely substitute his judgment for that of the prosecutor.

As Cowan and Rinaldi point out, and as the district judge acknowledged, the determination of the public interest in the first instance is for the prosecutor to make. We are not in a position to second-guess his determination, and even if we were, under the facts of this case we could not say that the prosecutor mistakenly gauged the public interest.