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The early contender for dumbest thing I have to deal with today is Trey Gowdy baying into the wind that he’s “never seen anything like this.” By “this,” he means the idea that a judge would appoint an independent actor to argue in favor of continuing the prosecution of a guy who HAS ALREADY ENTERED A GUILTY PLEA. Twice.
It’s almost like Gowdy has not paid attention to the Supreme Court for, like, a decade. The federal judiciary is more than happy to appoint counsel to argue orphaned arguments, and while that usually doesn’t happen in criminal trials, usually the federal government isn’t walking away from straight-up guilty pleas from sophisticated actors with competent counsel.
Judge Emmet Sullivan issued an order last night appointing Debevoise’s John Gleeson to serve as amicus on the case, and basically explain why Judge Sullivan shouldn’t throw Michael Flynn in prison for perjury since the former National Security Advisor took an oath in federal court to tell the truth and then admitted to all the elements of a federal crime. While represented by Covington.
Attorney General Bill Barr may not care about lying to law enforcement any more, having moved on to offering shadow support to his Republican cronies trying to make “unmasking” a scandal, which anyone with two brain cells and basic research skills can piece together isn’t a scandal, but maintaining the sanctity of the federal court as a place where people don’t lie willy-nilly is still a valid concern. The judge could, of course, just accept Barr’s half-hearted excuse and let this whole case disappear. That’s certainly the easy way out. But the federal judiciary used to have a backbone and Judge Sullivan managed to find it somewhere in the wreckage of the Trump tax case oral argument. There’s a good argument that federal judges wield too much power in this world, but “punishing people who lie to them” is exactly the power they need to prevent the whole system from becoming a joke.
Fox News has already started pretending that this is a crisis of the separation of powers, but it’s not. Unlike the Supreme Court keeping non-justiciable claims alive to please Tucker Carlson, Judge Sullivan is explicitly asking Debevoise to brief out whether or not he should use the judiciary’s contempt power to penalize someone who, if the Department of Justice is to be believed, lied to the court under oath. Because as I pointed out on Twitter as soon as the Flynn decision got announced, either he’s guilty or he perjured himself but it’s one or the other.
And Trey Gowdy is probably not stupid enough that he doesn’t know this distinction. He’s just positive the average Fox viewer is.
(Check out the order on the next page.)
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.