Flynn case: the appointed amicus, retired judge Gleeson, has asked for leave to file a brief exceeding the page limits. The brief can be found here: drive.google.com/file/d/1O7lAOX…
Initial impressions: this brief is a shockingly dishonest presentation of the law. A former judge knows better. The recommendation against contempt is correct -see my brief- but again the analysis is dishonest & proposing to use the “perjury” for sentencing is unconstitutional.
Gleeson doesn’t deal at all w/the separation of powers issue, which is the principle issue in the case. He doesn’t analyze Heckler, Wayte, or ICC - all Sup. Ct cases. Even if you disagree w/the conclusion our amicus group (& DOJ) reached, not discussing those cases is dishonest.
The Court of Appeals case, Fokker, specifically relies on tbe separation of powers holding in Wayte. To not address that analysis is unbelievable. The brief is not a fair discussion of the applicable law, regardless of conclusions.
Gleeson was asked to advise the court & make the arguments in opposition, so it’s fine he’s not taking Flynn’s side. At the same time, he wasn’t asked to make the most partisan argument available & ignore all law that goes against you. No competent advocate would even do that.
The perjury as sentencing issue is more subtle. He cites Hudgings but doesn’t apply it - again it’s dishonest “analysis.” He correctly concludes the contempt is off the table, but doesn’t clearly say why - because Hudgings directly holds its improper!
To try to save the contempt in a different format, he says Sullivan should use it in the sentencing instead. He cites other cases doing that, which OK they’re doing it, but doing so still runs completely afoul of another body of constitutional law dealing w/right to jury trial.
In the Booker case in 2005, tbe Supreme Court made the federal sentencing guidelines voluntary rather than mandatory as Congress had enacted them. The reason was the 6th Amendment right to jury trial.
The Court said sentences could not be increased based on any fact not found beyond a reasonable doubt by a jury or agreed to by you in a plea bargain. Under the Guidelines, judges were increasing sentences for things “found” by the Probation Officer in the sentencing report.
After Booker the courts have slowly ruled out various things as not okay for judges to use in sentencing under the principle of Booker. What Gleeson is proposing for the “perjury” goes in the opposite direction & he doesn’t mention Booker. Again, this is dishonest analysis.
No case has yet taken this specific issue up to the Sup. Ct, which is why he can cite cases doing it. But that doesn’t change the fact that the direction of the law is clear & based on things the current justices have said, it’s going to continue that way. Gleeson ignores that.
A good lawyer or judge doesn’t need a case exactly like the one at issue to have been decided already in order to apply the principles of Supreme Court cases to the current case. Gleeson is willfully not doing that. This is bad lawyering, but shocking for a former judge.
