That retired judge, John Gleeson, not only recommended that Flynn be sentenced as planned but issued a scathing report condemning the Justice Department’s actions in the case:
In his argument, Gleeson said the government’s “ostensible grounds” for seeking dismissal were “conclusively disproven” by its own earlier briefs; contradict the court’s prior orders and Justice Department positions taken in other cases; and “are riddled with inexplicable and elementary errors of law and fact.” A former federal prosecutor and judge for 22 years in Brooklyn — best known for putting the late mob boss John Gotti behind bars and presiding over the trial of “Wolf of Wall Street” stockbroker Jordan Belfort — Gleeson wrote that judges are empowered to protect their court’s integrity “from prosecutors who undertake corrupt, politically motivated dismissals. That is what has happened here. The Government has engaged in highly irregular conduct to benefit a political ally of the President.”
Not only that, Gleeson stated that “Flynn has indeed committed perjury in these proceedings, for which he deserves punishment,” but recommended that instead of a separate prosecution, Flynn’s misdeeds should be taken into account when he is sentenced for the crime he pleaded guilty to.
Gleeson’s conclusions aren’t surprising in their particulars, because anyone familiar with this case knows them to be an accurate representation of the action Barr took. There is no doubt about what Flynn did, nor that it was against the law, nor that he would have known he was breaking the law when he did it.
FBI agents investigating Russian meddling asked him about his conversations before he took office with the Russian ambassador, and he lied to them about what transpired in those conversations (which were recorded as part of the government’s surveillance of the ambassador). He also lied to Trump administration officials, including the vice president, who then repeated Flynn’s lies to the media.
Yet Barr carried out Trump’s obvious wishes by intervening to help Flynn (just as he had done with the case against Trump confidante Roger Stone). As the New York Times reported: “A range of former prosecutors struggled to point to any previous instance in which the Justice Department had abandoned its own case after obtaining a guilty plea.”
Barr did it because it was what Trump wanted, and because he evidently shares Trump’s belief that the government should essentially be run like a mob family, in which those who have the boss’s favor need not be held accountable for any crimes they commit. Asked how history would judge his actions, Barr laughed and said, “History is written by the winners.”
But he and Trump haven’t won yet, at least not in this case. An appeals court is about to hear Flynn’s request that the case against him be dropped so he can escape any sanction at all; they’ll have to decide whether the judge can go ahead and sentence him even after the Justice Department has withdrawn. The case could well go all the way to the Supreme Court.
It will be neither the first nor the last time the high court is asked to rule on whether Trump’s utter corruption of the U.S. government should be limited or greeted with a smile and a nod, and there’s no way to know how they’ll rule. Four of the justices operate on the “Republicans get to do what they want” principle, and a fifth, Chief Justice John G. Roberts Jr., agrees with them on that point some (but not all) of the time.
But if nothing else, we can take solace that there are at least some moments when the system is capable of speaking an obvious truth. Not even the most partisan Republican actually believes that Flynn is some kind of martyr, or that impartial justice demands he be unburdened from accountability for his choices. He’s Trump’s guy, so Trump’s AG should let him go. It’s as simple as that.
Gleeson’s report makes that clear. Let me point to this passage:
The reasons offered by the Government are so irregular, and so obviously pretextual, that they are deficient. Moreover, the facts surrounding the filing of the Government’s motion constitute clear evidence of gross prosecutorial abuse. They reveal an unconvincing effort to disguise as legitimate a decision to dismiss that is based solely on the fact that Flynn is a political ally of President Trump.
We’re not used to reading that kind of blunt language in legal documents, but it’s completely appropriate here. We all know what’s happening: Barr is trying to spring Flynn on the president’s behalf. It’s repellent, it’s corrupt, and in a better world it would itself be grounds for Barr’s impeachment.
That won’t happen, and the Supreme Court may come to Flynn’s rescue in the end. But, at least for now, it’s good to hear the truth spoken.