Judge Opposing Flynn Ruled in 2012: ‘Abuse of Discretion’ Not to Allow Dismissal

Former US National Security Advisor General Michael Flynn arrives for his sentencing hearing at US District Court in Washington, DC on December 18, 2018. (Photo by SAUL LOEB / AFP) (Photo credit should read SAUL LOEB/AFP/Getty Images)
SAUL LOEB/AFP/Getty Images

Retired federal judge John Gleeson, who was appointed Wednesday to present arguments against letting Michael Flynn go free, ruled in 2012 that it would be an “abuse of discretion” for the court not to allow the government to drop a prosecution.

Judge Emmet G. Sullivan appointed Gleeson to argue as amicus curiae (“friend of the court”) against granting a Department of Justice (DOJ) motion to dismiss the case against Flynn, and to argue for finding Flynn in criminal contempt of court for changing his plea. On Monday, Gleeson co-authored an op-ed in the Washinton Post opposing the DOJ’s decision, saying it “reeks of improper political influence” — and not because Flynn was targeted by the lame-duck Obama administration.

But in a criminal case in 2012, U.S. vs. HSBC USA, Judge Gleeson approved a deferred prosecution agreement (DPA) and made the observation that if the government had tried to dismiss the case, he would have had little choice.

Gleeson wrote (emphasis added):

The government has absolute discretion to decide not to prosecute. ICC v. Brotherhood of Locomotive Engineers, 482 U.S. 270, 283 (1987) (“[I]t is entirely clear that the refusal to prosecute cannot be the subject of judicial review.”). Even a formal, written agreement to that effect, which is often referred to as a “non-prosecution agreement,” is not the business of the courts.6 In addition, the government has near-absolute power under Fed. R. Crim. P. 48(a) to extinguish a case that it has brought. See United States v. Pimentel, 932 F.2d 1029, 1033 n.5 (2d Cir. 1991) (“Rule 48(a) provides that prosecutors may, ‘by leave of court,’ file a dismissal of an indictment, information or complaint. A court is generally required to grant a prosecutor’s Rule 48(a) motion unless dismissal is ‘clearly contrary to manifest public interest.’”). In my view, if the government were now moving to dismiss this case, it would be an abuse of discretion to deny that motion. 

Gleeson might try to distinguish Flynn’s case from that example in two ways. First, Flynn has already pleaded guilty. But that does not stop the government from withdrawing the case, and the reason the Federal Rules of Criminal Procedure require a hearing before dismissal, once a case has begun, is not to police the prosecution but to protect the defendant. (It would be unfair to allow the government to quit while it was losing a case, only to prosecute the same case against the defendant later.)

Second, Gleeson might argue that allowing Flynn to go free would be “contrary to manifest public interest.” Clearly, Gleeson believes that there is a public interest in prosecuting Flynn, or at least preventing a dismissal. But in his entire op-ed, he does not explain what that public interest is. Meanwhile, there is a “manifest” public interest in dropping the case, since evidence uncovered by U.S. Attorney Jeffrey Jensen suggests that Flynn’s rights were violated by FBI officials — including then-FBI Director James Comey, who mismanaged the Russia investigation and admitted personally sending agents to trap Flynn.

The Supreme Court held last week — unanimously — that the use of amicus briefs to shape a case other than the one litigants want to pursue is improper. Justice Ruth Bader Ginsburg, the most venerated among the Court’s liberals, wrote the opinion.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). His new book, RED NOVEMBER, is available for pre-order. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.

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