CNN's Jeff Toobin explained in a New Yorker column Wednesday that if there's one thing Judge Emmet Sullivan hates its prosecutorial misconduct. That could give clues to the future of Lt. Gen. Michael Flynn's Hail Mary to stay out of jail.
Flynn already pleaded guilty to lying to FBI agents, but the Department of Justice has decided that his lies didn't matter, so breaking the law also didn't matter. There's no precedent for the DOJ withdrawing a case after someone confessed they're guilty.
Judge Sullivan appointed retired federal Judge John Gleeson to review the case and argue on behalf of the people since the DOJ seems to have joined the defense team.
"Gleeson's passing reference to Sullivan's history 'in other situations' as a foe of prosecutorial misconduct is the clue to what may happen this time," wrote Toobin. "It was a reference to a disgraceful episode in the recent history of the Justice Department: the failed prosecution of Senator Ted Stevens, Republican of Alaska. In brief, Stevens was charged with neglecting to report as gifts certain renovations that had been made on his vacation home in Alaska. He was convicted in a trial before Judge Sullivan in 2008, shortly before he lost a bid for a seventh term in the Senate. During and especially after the trial, it came out that prosecutors had withheld a variety of exculpatory material from Stevens's defense.
"In light of this, Eric Holder, in one of his first acts as Attorney General, in 2009, dropped the prosecution. Not satisfied with simply ending the case, Sullivan ruled that "the interest of justice requires the appointment of a non-government disinterested attorney"—in that case, it was Henry F. Schuelke III, a Washington lawyer—to investigate the prosecutorial misconduct. While Schuelke was conducting his inquiry, Stevens died in a plane crash, and one of the prosecutors committed suicide," he continued.
Toobin explained that Sullivan essentially put Gleeson in the same position he did with Schuelke yeas ago. The difference between the two, however, is that Stevens was more about "an excess of prosecutorial zeal." Flynn's case is more about the DOJ "cheating to win versus cheating to lose."
"The big question for Gleeson, then, is how he will want to proceed with his investigation," said Toobin. "He could simply review the Justice Department's pleadings in the case and conclude, as he did in his op-ed piece, that there is no basis for the government's legal conclusion—that the FBI's interrogation of Flynn was justified, and his guilty plea for lying should stand. At that point, Sullivan would have to decide whether to grant the government's motion and end the case, anyway, or proceed to sentence Flynn. (Sullivan could also seek to charge Flynn with contempt for lying in his courtroom about his interactions with the FBI) It would apparently be without precedent for Sullivan to sentence a defendant even though the government has moved to dismiss the case, but that doesn't necessarily mean it can't happen."
Gleeson, he explained, could ask to move forward the way Schuelke did and ask Sullivan to talk to witnesses to uncover why the DOJ decided to change things. When that happened with Schuelke, he spent two years investigating, creating a 500-page report about the misconduct in the case. If there were witnesses, Gleeson could also take a closer look at Attorney General Bill Barr and those in his chain of command, including President Donald Trump.
"Either way, it looks as if Gleeson will move with considerably more dispatch than Schuelke did," said Toobin. "In a letter to Sullivan this week, Gleeson wrote that he will make his first report to the court on June 10th."
Even though Flynn's lawyers appealed to a higher court to remove Sullivan and dismiss the case, Gleeson continued onward, saying he intends to submit his report by June 10, 2020, and will reveal "any additional factual development I may need before finalizing my argument."
"This means that he will indicate at that time whether he wants Sullivan to call witnesses before deciding whether to dismiss the case. The judge, for his part, has set a hearing in the case for July 16th, which may turn out to be only the beginning of his inquiry into why the Justice Department tried to drop the case against Flynn," Toobin closed.