John Gleeson, Making the Same Old Mistake

When the government filed its motion to dismiss the Flynn prosecution rather than proceed to sentencing, Judge Sullivan appointed former federal prosecutor and US District Judge John Gleeson as a “friend of the court” to evaluate how the court should respond.  The preeminent question is whether and to what extent it is consistent with separation of powers for a court to compel the executive branch, which alone has to power to press criminal charges, to continue to prosecute a case it now views as irretrievably tainted by prior FBI misconduct.  Judge Gleeson today filed his amicus brief, arguing that Sullivan should reject the government’s motion and continue the prosecution to sentencing notwithstanding the prosecutor’s desire to stand down.

In a coming post, I might address the merits of Judge Gleeson’s recommendation, which I view as both legally incorrect and inconsistent with the ethical standards the judiciary should want  —  not resist  —  from the Justice Department.  But for however that may be, I write now to point out that Judge Gleeson is uniquely unqualified to hold forth on the separation our system embraces between the role of an advocate and that of a judge  —  unqualified because Gleeson himself, while on the bench, breached that separation to an extent I have never seen before in more than 40 years practicing law.  The story is here.