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Attorney General Bill Barr thought he could end the Michael Flynn prosecution by canning all the hard-working Department of Justice prosecutors and having a flunky declare that the government is dropping the case. A case that they’d already won.
That’s… unusual.
And it’s also the sort of thing that requires leave of the court.
Debevoise partner John Gleeson, a former Eastern District of New York judge, joined the Michael Flynn case at Judge Sullivan’s invitation to, in a nutshell, provide an independent answer to the question of whether or not Judge Sullivan should grant leave to allow the DOJ to walk away on the brink of sentencing and, separately, whether or not Flynn should be held in criminal contempt for now claiming that he wasn’t telling the truth when he admitted under oath to committing crimes.
So what did Judge Gleeson think about the DOJ’s arguments for dropping the case? A little inside baseball here, but the word “pretextual” gets prominent billing and that’s not good for the prosecution:
The Government’s ostensible grounds for seeking dismissal are conclusively disproven by its own briefs filed earlier in this very proceeding. They contradict and ignore this Court’s prior orders, which constitute law of the case. They are riddled with inexplicable and elementary errors of law and fact.
Twitter is replete with lobotomized non-lawyers (and sometimes just bad lawyers) trying to sell the cockamamie theory that Flynn was entrapped by some sort of illegal government sting operation. The basic tenets of this argument don’t hold up to scrutiny — the dates don’t even match up in most cases — but they’re still bleating about FBI collusion.
Judge Gleeson found collusion alright. But not where those folks think it is:
Rule 48(a) was designed to “guard against dubious dismissals of criminal cases that would benefit powerful and well-connected defendants.” In other words, the rule empowers courts to protect the integrity of their own proceedings from prosecutors who undertake corrupt, politically motivated dismissals. That is what has happened here.
Corrupt. Hooboy.
If Trump wants his buddy cleared, all he has to do is pardon him. There’s a constitutional process sitting right there! It would still smack of corruption, but there’s nothing anyone can really do about it. But instead, Barr cooked up this scheme that ends up failing to accomplish the goal and obliterating the reputation of the Department of Justice in the process. These people are the Wile E. Coyote of politics.
Oh, and what about that criminal contempt claim?
The Court has also asked me to address whether it should issue an order to show cause why Flynn should not be held in criminal contempt for perjury. Flynn has indeed committed perjury in these proceedings, for which he deserves punishment, and the Court has the authority to initiate a prosecution for that crime.
It was hard for even the most ardent MAGAheads to deny that Flynn’s two confessions under oath weren’t lies. Prosecutors can put defendants under duress but a sophisticated government official with high-powered Biglaw counsel can’t really retreat to the “oh, I had no idea what I was doing” defense.
The good news for Flynn is that Gleeson isn’t recommending a separate contempt charge, suggesting that Judge Sullivan just add it to his consideration of the sentence for the underlying crime.
(Check out the whole thing 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.