Law expert: Michael Flynn’s legal saga is stretching the fabric of justice

A file photo from June 24, 2019, shows Michael Flynn, President Donald Trump's former national security advisor, departing a federal courthouse after a hearing in Washington. Photo: Associated Press
By Michael R. Malone

A file photo from June 24, 2019, shows Michael Flynn, President Donald Trump's former national security advisor, departing a federal courthouse after a hearing in Washington. Photo: Associated Press

Law expert: Michael Flynn’s legal saga is stretching the fabric of justice

By Michael R. Malone
Ricardo Bascuas, professor of law, analyzes the latest legal twist in the ongoing drama involving the former national security advisor, whose politically tinged case has been characterized by irregularities.

If Michael Flynn’s legal case were a swatch of cloth, the fibers in the saga of the former national security advisor would be stretched to near transparency, according to Ricardo Bascuas, a professor of law in the University of Miami School of Law—whose expertise includes evidence, criminal procedure, and international criminal law. 

Bascuas, co-author of the casebook “Investigative Criminal Procedure: A Contemporary Approach,” offered his insight on the latest shift in the case—the appointment by Emmet Sullivan, the federal judge presiding over the case, of John Gleeson, a retired federal judge, to serve as a legal advisor and to oppose the U.S. Justice Department’s decision to dismiss charges against Flynn. 

Flynn was charged with lying to FBI agents about his contacts with the Russian ambassador in late December 2016, the same day that the Obama administration levied sanctions against Russia for attempting to interfere with the U.S. elections, and also for lying about his lobbying efforts on behalf of the Turkish government. Flynn pleaded guilty twice, resigned, and became a witness in the Special Counsel investigation by prosecutor Robert Mueller. Then, prior to being sentenced in December 2018, the former three-star U.S. Army general reversed his cooperative stance and asked the judge to let him rescind his guilty plea. 

In February 2019, William Barr was named attorney general of the U.S. Justice Department and soon after issued a short summary of the findings of the Mueller Report and installed a special prosecutor to review the Flynn case. On April 30 of this year, Barr announced that the Justice Department was dropping charges against Flynn. That decision outraged many legal experts and raised divisions with the department. On May 13, Sullivan named Gleeson, a former mob prosecutor, to oppose the dismissal of the charges and to investigate if Flynn had committed perjury. 

Bascuas shared his opinions on the unusual case.

Are there any precedents for this type of appointment? Are there other relatively high-profile cases where “legal advisors” have played a role? 

Our system is an adversarial system, which means that the parties are responsible for bringing their respective cases. We say our judges are neutral, by which we mean only that they do not investigate the facts. Instead, they rely on the parties to find witnesses and gather evidence. That type of neutrality is meant to keep them from getting invested in who wins the case. It is the same reason that every jury is told not to read the news or research the case. The facts can come only from reliable evidence gathered and presented by the parties. 

In some cases, the Supreme Court has appointed a lawyer to serve as amicus curiae or friend of the court to brief a legal—never a factual—issue. The Supreme Court only does this, however, when it has an affirmative obligation to investigate all sides of a legal question. For example, courts have a duty to presume that laws are constitutional and to avoid striking them down whenever possible. So, when the Justice Department refuses to defend the constitutionality of federal statute—as it did when the Defense of Marriage Act was challenged in 2015—the Court appoints a lawyer with extensive expertise in that field to argue in support of the legislation. 

The lower federal courts have assumed that this means they can appoint a lawyer to argue whenever the government agrees with a defendant on anything, as in the Fokker Services case. But there is no legal theory that supports that. Unless the government has violated the law in some way or the court has a special duty to research issues the parties have no interest in exploring, there is absolutely no judicial authority to enforce the laws. That is exclusively the job of prosecutors, and judges have no business second-guessing them. 

When they do that, they abandon judicial neutrality and effectively become prosecutors. As the Seventh Circuit Court of Appeals held, “The authorized powers of federal judges do not include the power to prosecute crimes.” In re United States, 345 F.3d 450, 452 (7th Cir. 2003). 

Gleeson wrote a recent opinion article noting that the judge could reject the Justice Department’s motion to dismiss the charges and that “the case isn’t over until the judge says it’s over.” Is his assertion accurate? 

If you read the Gleeson piece carefully, you will find that it has no legal support. The one case he quotes—Mesarosh v. United States, decided in 1956—arose during McCarthyism and reversed a conviction obtained in reliance on the testimony of an inveterate perjurer. In other words, the court was doing its job of safeguarding the rights of defendants against an overwhelmingly powerful government. That case provides no support for a judge taking over a prosecution. If anything, it is a stark warning of the inappropriateness of doing so. 

How or who determines the scope of Gleeson’s role as a legal advisor? What legal powers does he have? 

Gleeson has no legitimate legal powers. All of this is unauthorized, and no legal theory supports it. 

What are the most likely scenarios that could unfold? 

That depends on what Flynn’s legal team decides to do. One thing they could do is immediately seek a writ of prohibition from the court of appeals, which is an order directing the trial judge to confine himself to his lawful duties, which in this case means closing the case. 

Note: On May 18, Gleeson requested a hearing for oral arguments after he briefs the court. He plans to file his argument in three weeks, according to a report in The Washington Post. On May 19, Flynn’s lawyers asked an appeals court to dismiss Flynn’s conviction, prohibit outside entities from intervening, and reassign the case to another judge.