From the First Page, Judge Gleeson’s Brief Against Flynn is a Travesty
You know a lawyer’s bluffing if he inundates the court with case authority for an ostensibly simple principle. The amicus brief that Judge Gleeson filed with Judge Sullivan in the Flynn case has those string cites. Gleeson’s bluffing. Worse, he’s lying.
It’s typical for dishonest attorneys to use fake citations – cases that do not stand for the principles asserted -- in their endless string sites, hoping no one will check. This what Judge Gleeson did in his brief: Every one of his 14 citations in footnote two on page 1 is a lie. That’s all you need to know about his brief.
Gleeson argues that Sullivan was behaving normally when he invited a third-party to attack a defendant at the trial court level in a criminal case. These are Gleeson's case citations, each of which is wrong:
• Holguin-Hernandez v. United States, 140 S. Ct. 762, 765 (2020): I was unable to locate a substantive decision for a case of this name at that location. [See update below.] Instead, after searching in legal databases and online, I found this -- United States v. Holguin-Hernandez (5th Cir., Apr. 15, 2020, No. 18-50386) [pp. 2] (emphasis mine):
Applying our well-established prior precedent, as we are required to do, we ruled that Holguin-Hernandez failed to raise his challenges in the district court, such that our review was for plain error only. United States v. Holguin-Hernandez, 746 F. App'x 403 (5th Cir. 2018) (mem.) (citing United States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009)), vacated and remanded, 140 S. Ct. 762 (2020). The Supreme Court granted certiorari and vacated our decision, determining that by arguing for a specific shorter sentence than he received, Holguin-Hernandez preserved his claim of error such that plain error review was inappropriate. Holguin-Hernandez, 140 S. Ct. at 764, 765, 767.
• The following cases all involve an appellate court inviting an amicus brief, which is standard and accepted practice at the appellate level:
Greenlaw v. United States, 554 U.S. 237, 243 (2008).
United States v. Harrington, 947 F.2d 956, 960 & n.7 (D.C.Cir. 1991).
United States v. Robertson, 507 F.2d 1148, 1158-59 (D.C. Cir. 1974).
Seidner v.United States, 260 F.2d 732, 734 (D.C. Cir. 1958).
• I cannot access the following six unpublished district court cases. Whatever happened, none were tested on appeal, and they are not legal authority:
United States v. Pitts, No. 19 Crim. 49 (D.D.C. July 30, 2019) (Sullivan, J.)
United States v. Suggs, No. 07 Crim. 152 (D.D.C. Nov. 6, 2015) (Huvelle, J.).
United States v. Jackson-White, No. 13 Crim. 91 (D.D.C. July 21, 2013) (Berman Jackson, J.).
United States v. Clarke, No. 06 Crim. 102, ECF No. 410 (D.D.C. Mar. 20, 2009) (Bates, J.).
United States v. Church, No. 95 Crim. 173, ECF No. 49 (D.D.C. Dec. 19, 1995) (Kessler, J.)
• United States v. Moore, 209 F. Supp. 2d 180, 181 (D.D.C. 2002). As well as being untested on appeal, Judge Sullivan appointed a Federal Public Defender as amicus curiae for, not against, the defendant.
Gleeson also makes fallacious arguments:
This practice [amicus briefs in criminal trials] is also consistent with the local rules. The district court’s civil rules “govern all proceedings in the United States District Court for the District of Columbia” and allow for the participation of amici. See D.D.C. Local Civ. R. 1.1(a), 7(o).
Wrong! The district court has separate Civil and Criminal rules. The quoted language’s placement in the rules shows that it refers only to civil proceedings:
We know this is true because there is a corresponding paragraph in the criminal rules, which obviously means that the civil rules are inapplicable:
Lastly, Gleeson argues
Even apart from those rules, “federal district courts possess the inherent authority to appoint amici curiae[.]” In re App. of FBI for an Order Requiring the Prod. of Tangible Things, No. 13 Br. 158, 2013 WL 12335411, at *2 (FISA Ct.Dec. 18, 2013); see also Jin [v. Minister of State Security], 557 F. Supp. 2d  at 136 (D.D.C. 2008).
Both In re App. Of FBI and Jin are civil cases. The cases to which the Jin court cites are also civil cases.
In United States v. Sineneng-Smith, No. 19-67 (U.S. Sup. Ct., May 7, 2020), which Gleeson ignores, Justice Ginsburg lambasted the Ninth Circuit for inviting amici counsel to help it advance its own take in a criminal case:
The Nation's adversarial adjudication system follows the principle of party presentation. Greenlaw v. United States, 554 U. S. 237, 243. “In both civil and criminal cases, . . . we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.” Id., at 243. That principle forecloses the controlling role the Ninth Circuit took on in this case. No extraordinary circumstances justified the panel's takeover of the appeal.
That standard should apply with extra force to a mere district court judge.
I’m not the only one who caught Gleeson being dishonest. There’s this too:
2/ Here's Gleeson's version:— Hans Mahncke (@HansMahncke) June 10, 2020
"[Papadopoulos] divulged that Russia contacted the campaign" pic.twitter.com/KwO0EGcTqZ
4/ Leaving aside that the FBI's version does not match Downer's own statements and that it might've been embellished somewhere along the way, the absolute minimum you'd expect from a court appointed amicus is to stick to the FBI's version. Tells you a lot that Gleeson didn't.— Hans Mahncke (@HansMahncke) June 10, 2020
Paul Mirengoff has more about what a piece of work Judge Gleeson is.
UPDATE: Someone was kind enough to forward the Westlaw report for the citation to Holguin-Hernandez v. United States, 140 S. Ct. 762, 765 (2020). I opened it with some trepidation for fear it would undercut the principle behind this article; namely, that Judge Gleeson was deceiving the court by failing to make the distinction between amicus briefs at the trial level in criminal cases versus at the appellate level (or higher). Thankfully, seeing the actual decision does nothing to upset the principle I was asserting. The Supreme Court did not say that district court judges can appoint amicus counsel in criminal cases. Instead, the Supreme Court appointed amicus counsel to brief an issue at the appellate level -- an issue that both the government and the defendant agreed was a problem. They did so because the nature of appeals meant there was no one to represent the opposing viewpoint at the appellate level, something the Supreme Court deemed important. An interesting principle, to be sure, but it has nothing to do with the matter at issue in the Flynn case.