Columns share an author’s personal perspective.
If the case involving retired Army Gen. Michael Flynn wasn’t already unconventional, it has now gotten downright weird.
The procedural posture of Flynn’s case is anything but your run-of-the-mill federal prosecution. First, the defendant was the president’s national security adviser. Flynn, the third highest-ranking adviser to the president, pleaded guilty. Then he fired his legal team and asked to withdraw the plea.
Flynn admitted, under oath in open court, to lying during an FBI interview on Jan. 24, 2017, four days after taking office. The lies regarded conversations Flynn had with the Russian ambassador about not escalating hostilities over sanctions imposed by the Obama administration.
The prosecution had won a conviction. Then the Justice Department, more aptly prosecutors and the defense, asked for the charges against Flynn to be dropped. The judge deferred a decision on the request.
Just when things couldn’t get any stranger, the judge hired an attorney to respond to an appeal by Flynn, and appointed a retired New York federal judge to argue against the Justice Department’s request to dismiss Flynn’s charges—a sort of advocatus diaboli for the court.
The presiding judge, U.S. District Judge Emmet G. Sullivan, delayed a decision on the motion to dismiss the charges so he could hear his appointed advocate, former federal judge John Gleeson, and other public groups who intended to argue against the Justice Department’s request to drop the charges.
The U.S. District Court of Appeals for the District of Columbia is now examining Judge Sullivan’s actions. To that end, the judge has retained Attorney Beth Wilkinson to represent him in defending his decision to the appeals court in Washington, according to the Washington Post. Gleeson has proposed that Judge Sullivan allow the government and outside groups to respond after he files his argument.
There are more than a few outside groups who want to weigh-in on the matter. The first group, comprised of nearly 1,000 former Justice Department prosecutors, has accused Attorney General William Barr of protecting the president’s interests over the interests of the nation. The prosecutors, who have served the last 11 presidential administrations, argued in a brief to the court that Barr violated his oath to faithfully execute the law.
According to news reports, attorneys with the nonpartisan, nonprofit group Protect Democracy have submitted a brief suggesting that Supreme Court precedent gives Sullivan authority to undertake “a searching review” of Flynn’s case and to “protect the public interest in the evenhanded enforcement of our laws.”
With regard to Attorney Wilkinson she is no demagogue. She represented Justice Brett M. Kavanaugh during his tumultuous confirmation. She also represented a longtime confidant of Hillary Clinton during an investigation into whether then-Secretary Clinton mishandled classified information by using her personal email.
Wilkinson will help guide Judge Sullivan as the U.S. Court of Appeals reviews whether Sullivan overstepped his authority.
The appeals court set a June 1 deadline for Sullivan to respond to a petition from Flynn’s lawyers that seeks the immediate dismissal of the case.
Stuart M. Gerson, who served as assistant attorney general under President George H.W. Bush and as acting attorney general early in the Clinton administration, recently wrote in the Washington Post, “It’s not uncommon for a court to appoint an outside lawyer to argue a case in lieu of the government when circumstances call for that approach.”
Some have suggested that Gleeson, Judge Sullivan’s court-appointed advocate, is biased.
Gerson contends, “However “biased” he [Glesson] might be in opposing the motion to dismiss, is he any less biased than whatever lawyer the Justice Department will send to argue in favor of ending the prosecution? Indeed, rephrase that so-called bias as “zealous advocacy,” something that the legal profession’s code of professional responsibility requires of counsel.”
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.