“If prosecutors attempt to dismiss a well-founded prosecution for impermissible or corrupt reasons, the people would be ill-served if a court blindly approved their dismissal request,” the op-ed’s authors argued. “The independence of the court protects us all when executive-branch decisions smack of impropriety; it also protects the judiciary itself from becoming a party to corruption.” They advised that the judge could demand career prosecutors explain their conduct or “appoint an independent attorney to act as a ‘friend of the court,’ ensuring a full, adversarial inquiry, as the judge in the Flynn case has done in other situations where the department abdicated its prosecutorial role. If necessary, the court can hold hearings to resolve factual discrepancies.”
On Wednesday, U.S. District Judge Emmet G. Sullivan, who paused the case on Tuesday, took the op-ed authors’ suggestion to heart and appointed Gleeson to present the argument that neither Flynn nor the Justice Department will make — namely that Barr cannot now swoop in to dismiss a well-founded case in which a guilty plea has already been entered. Even more tantalizing, Sullivan ordered Gleeson to “address whether the Court should issue an Order to Show Cause why Mr. Flynn should not be held in criminal contempt for perjury.” In other words, did Flynn, in entering his guilty plea, make false representations under oath?
Former FBI official Frank Figliuzzi summed up: “Flynn either lied to the FBI when he denied talking to [then-Russian Ambassador Sergey] Kislyak about sanctions, or he lied to the judge when he admitted he did.” And if Flynn did lie to the court, isn’t there an independent basis for judicial punishment? If he didn’t lie to the court but did lie to the FBI, what is the basis for dismissing the action? (Former prosecutor Barbara McQuade demolishes Barr’s argument that there was no predicate for the investigation.)
To make matters even more problematic for Barr, a former FBI official has cast doubt on the Justice Department’s arguments, although Barr has failed as yet to disclose this to Sullivan. The New York Times reports that former head of counterintelligence Bill Priestap, whose notes were cited in the motion to dismiss Flynn’s case, told the Justice Department his notes had been misinterpreted. Priestap said that “F.B.I. officials were trying to do the right thing in questioning Mr. Flynn and that he knew of no effort to set him up. Media reports about his notes misconstrued them, he said, according to the people familiar with the investigation.” Failing to disclose this to Sullivan could, to put it mildly, “trouble Judge Sullivan.”
Several points stand out in this highly unusual case.
First, Sullivan is signaling to the Justice Department (especially to career lawyers) that he is not going to let it off the hook when it does President Trump’s bidding. Sullivan will act independently in evaluating the attorney general’s move, perhaps even calling witnesses to testify as to Barr’s motives.
Second, Barr’s attempt to dismiss the case is not a slam dunk. Far from it. Former prosecutor Renato Mariotti observes, “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. . . . 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.”
Third, Gleeson is a wise pick, which means trouble for the Justice Department lawyers. Constitutional scholar Laurence Tribe — who said, “Retired U.S. District Court Judge John Gleeson is a strong choice for the task assigned to him by Judge [Emmet] Sullivan” — and multiple former prosecutors with whom I spoke attest to Gleeson’s skills as a prosecutor and his integrity. His interest here is in preventing the sort of perversion of the courts that Barr cavalierly undertakes in service to Trump, whom Barr wrongly believes is his client. (The American people are his client.)
Admittedly, I was skeptical at first that Sullivan would attempt to trip up Barr’s scheme, which amounts to extending a pardon to Flynn without the trouble of a proper presidential pardon (and the political blowback that would accompany it). However, I am reminded that life-long appointees to the federal bench enjoy tremendous independence and discretion. When wielded in the interests of justice to prohibit corruption of the court processes, those powers become a substantial impediment to an executive branch with autocratic pretensions and contempt for the rule of law.