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THREAD: What should we make of the news that Judge Sullivan has appointed retired Judge John Gleeson to present arguments in opposition to the DOJ's motion to dismiss the case against Michael Flynn?
1/ Earlier this evening, Judge Emmet Sullivan entered an order directing former Judge John Gleeson to present arguments in opposition to the DOJ's motion to dismiss the case against Flynn.
He also ordered Gleeson to address whether Flynn should not be held in criminal contempt.
He also ordered Gleeson to address whether Flynn should not be held in criminal contempt.
2/ Both of these actions by Judge Sullivan are highly unusual, but Judge Sullivan is responding to another highly unusual situation.
It is very rare for DOJ to dismiss a case after the defendant pleaded guilty, and even rarer to do so for what appears to be corrupt reasons.
It is very rare for DOJ to dismiss a case after the defendant pleaded guilty, and even rarer to do so for what appears to be corrupt reasons.
3/ Judge Sullivan was left in a very unusual situation.
The DOJ had previously argued that the guilty plea should stand, and repeatedly Judge Sullivan found that Flynn's conviction was proper.
The DOJ had previously argued that the guilty plea should stand, and repeatedly Judge Sullivan found that Flynn's conviction was proper.
4/ DOJ argued that "newly discovered evidence" revealed that Flynn's lie was not "material" to the FBI's underlying investigation.
The "materiality" requirement is just that the lie was "capable of influencing" the FBI. Not that it actually did.
The "materiality" requirement is just that the lie was "capable of influencing" the FBI. Not that it actually did.
5/ That standard is very favorable to prosecutors and very unfavorable to the defense. Defense attorneys have argued that the standard is unfair, because many defendants have pleaded guilty to telling lies even when the FBI knew the truth beforehand and prompted them to lie.
6/ In this case, the DOJ was arguing that the very low bar of "materiality" was not met, which is a very odd position for DOJ to take.
It is even more odd for DOJ to argue that newly revealed evidence compelled that result, because DOJ was aware of the FBI's notes all along.
It is even more odd for DOJ to argue that newly revealed evidence compelled that result, because DOJ was aware of the FBI's notes all along.
7/ Judge Sullivan was clearly troubled by Flynn's conduct, and the DOJ's odd positions in a case involving a friend of the president's raises obvious questions about whether it was acting corruptly.
But *no one* in his courtroom was arguing the other side of these issues.
But *no one* in his courtroom was arguing the other side of these issues.
8/ It is very hard for Judge Sullivan to make the DOJ go forward with a case that it wants to dismiss. He has the power to deny DOJ's motion to dismiss, but as a practical matter, both sides are arguing that the case should be dismissed.
9/ It's important to note what DOJ is *not* arguing. DOJ did *not* state that it engaged in any sort of prosecutorial misconduct. It is not stating that Flynn didn't lie.
The argument made by DOJ is that prosecuting Flynn is no longer in the interests of justice.
The argument made by DOJ is that prosecuting Flynn is no longer in the interests of justice.
10/ Typically judges defer to the discretion of prosecutors when they decide not to push forward with a criminal case against a defendant. After all, the defendant doesn't oppose the government's decision.
11/ Sullivan's decision here means that he's seriously considering denying DOJ's motion and he wants to consider whether that decision is wise and what the implications of that decision are.
Judge Gleeson won't be an advocate representing a client. He will be helping the judge.
Judge Gleeson won't be an advocate representing a client. He will be helping the judge.
12/ Judge Gleeson is not only a former judge, but he was a federal prosecutor in Brooklyn. I appeared before him when I was a young lawyer, and I was impressed with his command of the issues. He is a good choice to help advise Judge Sullivan on this issue.
13/ Today's order by Judge Sullivan is very bad news for the DOJ.
Their motion was highly unusual, and they will have to be prepared to answer many difficult questions about the odd positions that they've taken.
Their motion was highly unusual, and they will have to be prepared to answer many difficult questions about the odd positions that they've taken.
14/ But perhaps the most surprising development is that Judge Sullivan is considering holding Flynn in criminal contempt for perjury.
I wonder whether Judge Sullivan is raising this possibility, in part, to see whether DOJ or Flynn might change course.
I wonder whether Judge Sullivan is raising this possibility, in part, to see whether DOJ or Flynn might change course.
15/ Holding Flynn in criminal contempt for perjury seems fraught with potential issues, and I suspect that Judge Gleeson will ultimately decide not to do so.
But the mere possibility that Flynn might be held in criminal contempt could cause his lawyers to be less aggressive.
But the mere possibility that Flynn might be held in criminal contempt could cause his lawyers to be less aggressive.
16/ As long as Trump is in the White House, it looks like Flynn will be pardoned.
But it also looks like DOJ risks a decision by Judge Sullivan that further embarrasses its leadership and diminishes the reputation of the Department.
DOJ has more at stake than Flynn does. /end
But it also looks like DOJ risks a decision by Judge Sullivan that further embarrasses its leadership and diminishes the reputation of the Department.
DOJ has more at stake than Flynn does. /end
