Judge Emmet Sullivan’s appointed amicus curiae offered a decidedly hard-charging approach during an increasingly contentious Tuesday hearing over whether or not to dismiss longstanding charges against retired lieutenant general Michael Flynn.
During his lengthy remarks, former mob prosecutor and judge John Gleeson took direct aim at Flynn–insisting on his guilt and later going after U.S. Department of Justice (DOJ) attorneys by calling into question their basic legal understanding and courtroom skills.
Gleeson’s major point was that the DOJ had obviously, clearly and readily folded to pressure brought to bear upon their decisions by President Donald Trump. He dismissed the notion of holding an evidentiary hearing to cabin any potential inquiry into this issue because, he said, the briefs of the case were teeming and squirming with evidence of subterfuge and politically-influenced corruption.
“Part of your job,” the former judge said, “is to ask for the reasons.”
“Ask for the reasons and the factual basis for the reasons,” Gleeson continued. “And they have to be the real reasons. And [DOJ’s] reasons are so patently pretextual that the government feels the need to keep coming up with more of them. Sometimes, in another setting, there might be a reason to have a factual hearing to determine pretext, but here, it jumps off the record of the case.”
“It’s a gross abuse of prosecutorial discretion,” Gleeson said later on, adding: “the pretext keeps coming over the transom.”
Sullivan then asked Gleeson to address the defense’s motion for the judge himself to withdraw from the case–on the basis that, as Flynn’s attorneys have repeatedly argued, Sullivan is engaged in a politically-motivated witch hunt with no precedent in the United States.
“I can’t believe some of the things I’m hearing,” Gleeson said in response to the withdrawal argument. “Of course it’s the case that this court would never accept a guilty plea from someone who claims that he’s innocent. Of course that’s the case. That’s not what’s happened here. What’s happened here is this defendant knowingly and voluntarily–and in the face of evidence that proves his guilt every which way–pled [sic] guilty not once but twice.”
“People can’t plead guilty and then show up for sentencing–as this defendant did on December 18, 2018–and see how the wind is blowing,” Gleeson said–in reference to Flynn’s previous guilty pleas and later efforts to withdraw those pleas after a disputed cooperation agreement with the government eventually went awry.
“Not for nothing,” Gleeson continued. “I’m from Brooklyn, not for nothing, but this crime was committed in the West Wing.”
The former judge went on to lambaste the defendant’s apparent “change of heart,” arguing that Flynn’s efforts to skirt responsibility for his prior admissions and allocution statement were simply the product of gauging Sullivan’s own temperature in regard to the case during that memorable 2018 sentencing hearing.
The man who secured the conviction of John Gotti and who also prosecuted infamous “Wolf of Wall Street” day trader Jordan Belfort also reserved a substantial amount of ire for the DOJ lawyers on the opposite side of the digital bench on Tuesday.
“The government lawyers just have their law wrong,” Gleeson said–disputing their interpretation of D.C. Circuit case law. “I mean this in the kindest possible way, but they sound like bad defense lawyers.”
“The contortions the government has engaged in to contradict its own findings are not pretty,” Gleeson offered at one point—saying that Sullivan has never overseen a case where the government has so thoroughly backtracked after nearly securing a conviction and positing that they would never offer such a favorable view of a criminal defendant in any other case not including Michael Flynn.
The former judge went on to say that the DOJ’s legal theories “have been adopted just to help this one defendant” and he argued that the government “would laugh at” similar requests to dismiss from other criminal defendants.
“You know and I know that they’ll oppose them elsewhere,” Gleeson said of the position the government has taken.
Gleeson asked DOJ lawyers Kenneth Kohl and Hashim Mooppan twice if anyone can take back their guilty plea after they realize sentencing isn’t going to go their way–and if the government will support such requests. The DOJ did not respond to those questions.
“Does the government really think it couldn’t win [their] case?” Gleeson asked out loud. “Of course it doesn’t.”
The former prosecutor also accused U.S. Attorney John Durham, Barr’s handpicked investigator of all things Russia probe, of laundering pro-Flynn “tidbits” via his “weird investigation” so that they eventually “pop up” as supplemental filings on the Flynn docket.
“It’s sad. It’s ridiculous and it’s sad because it’s our justice department, too,” Gleeson said.
“There’s no overstating how damaging it is to the court, to the judiciary of which this court is a part, and to the department itself–to create a new set of rules that only apply to Michael Flynn and will never apply to anyone else,” he added later on.
[Image via SAUL LOEB/AFP via Getty Images]
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