GateHouse Media
May 29, 2020
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.
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.”
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.
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