Yesterday, I wrote about John Gleeson, the former judge enlisted by Judge Emmet Sullivan to advise him about whether to sentence Flynn, even though the prosecution has moved to dismiss its case. Sullivan knew what advice he would get because Gleeson had already written an op-ed calling on Sullivan to sentence Flynn. Sure enough, that’s the advice Gleeson offered.
In yesterday’s post, borrowing from Bill Otis, I described how, as a federal judge, Gleeson assumed the role as advocate for a serial criminal who had already been convicted and sentenced. First, Gleeson mounted a campaign to pressure the local U.S. attorney’s office into vacating two convictions it had lawfully obtained so that the thug’s sentence could be reduced. Then, switching from advocate back to judge, he reduced the sentence.
Thus, Gleeson served as both the criminal’s advocate and his sentencing judge.
Now, Jonathan Turley reports on another case in which the power hungry Gleeson misused his position as a judge. In that case, Gleeson usurped the role of the prosecutor, much like he urges Judge Sullivan to do in the Flynn case.
Gleeson was reprimanded for doing so by the U.S. Court of Appeals for the Second Circuit. The case is U.S. v. HSBC Bank USA,, 863 F.3d 125, 136 (2d Cir. 2017).
It involved a deferred prosecution agreement (DPA). The DPA reached by the Justice Department and the bank provided that if HSBC complied with its extensive obligations under the agreement, the government would seek the dismissal of its charges at the conclusion of the DPA’s five-year term.
Judge Gleeson claimed the power to review and approve the DPA on its merits, and to condition approval on the court’s monitoring of the DPA’s implementation. Furthermore, as the Second Circuit stated:
In the exercise of that asserted authority, the district court subsequently ordered the government to file a confidential report prepared by the independent monitor regarding HSBC’s compliance with the DPA (the “Monitor’s Report”). In November 2015, appellee Hubert Dean Moore, Jr., a member of the public, moved to unseal the Monitor’s Report. The district court granted the motion, subject to redactions, finding that the Monitor’s Report was a “judicial document” to which the public enjoyed a qualified First Amendment right of access.
The government and HSBC appealed the district court’s unsealing and redaction orders.
The Second Circuit agreed with the government and HSBC that that the district court ran afoul of separation of powers principles in involving itself in the implementation of the DPA. It stated:
By sua sponte invoking its supervisory power at the outset of this case to oversee the government’s entry into and implementation of the DPA, the district court impermissibly encroached on the Executive’s constitutional mandate to “take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 3. In the absence of evidence to the contrary, the Department of Justice is entitled to a presumption of regularity — that is, a presumption that it is lawfully discharging its duties. Though that presumption can of course be rebutted in such a way that warrants judicial intervention, it cannot be preemptively discarded based on the mere theoretical possibility of misconduct.
Absent unusual circumstances not present here, a district court’s role vis-à-vis a DPA is limited to arraigning the defendant, granting a speedy trial waiver if the DPA does not represent an improper attempt to circumvent the speedy trial clock, and adjudicating motions or disputes as they arise. Because the Monitor’s Report is not now relevant to the performance of the judicial function, it is not a “judicial document” and the district court erred in ordering it unsealed.
The Second Circuit went on to criticize Gleeson for basing his supervisory power on the possibility of improper conduct by the prosecutor in connection with the DPA. Doing so, said the court, “runs headlong into the presumption of regularity that federal courts are obliged to ascribe to prosecutorial conduct and decision making.”
That presumption is “rooted in the principles that undergird our constitutional structure.” In particular, “because the United States Attorneys are charged with taking care that the laws are faithfully executed, there is a `presumption of regularity support[ing] their prosecutorial decisions and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.’” [citation omitted]
Professor Turley points out that Gleeson’s brief urging Judge Sullivan to override the Justice Department’s decision to end the Flynn prosecution is “filled with sweeping presumptions against the motivations and analysis of the Justice Department.” Thus, Gleeson appears to be advising Sullivan to do pretty much the same thing he himself was reprimanded for doing in the HSBC case. (It’s also almost the same conduct the D.C. Circuit recently denounced when it granted a writ of mandamus in the Fokker Services case.)
Gleeson believes that the Justice Department acted improperly (irregularly) in moving to dismiss the Flynn case. The Justice Department believes the FBI acted improperly (irregularly) in its investigation of Flynn, and that Team Mueller should not have prosecuted the case.
Reasonable people probably can disagree over this. But only the Justice Department is entitled to the presumption of regularity from Judge Sullivan in the Flynn case.
Who is John Gleeson? He’s a former judge with a penchant for exercising power judges do not possess.