Retired federal judge John Gleeson, who was appointed by Judge Emmet Sullivan to submit a brief arguing against the Justice Department's motion to dismiss former national security adviser Michael Flynn's criminal case, has asked for oral arguments to take place following the submission of written briefs.
In a Monday court filing, Gleeson suggested a deadline of June 10 for his initial brief – to be followed by the Justice Department's response as well as Gleeson's reply to that response – and then oral arguments from both sides.
"Of course, I will proceed in whatever manner and on whatever timeline the Court directs, and I understand the need for an expeditious resolution of the issues identified in the Court's May 13 order," Gleeson wrote.
Gleeson said that in his brief he would like to focus on three issues: the court's authority to deny the motion to dismiss under Rule 48 of the Federal Rules of Criminal Procedure, "any additional factual development I may need before finalizing my argument" against the motion to dismiss, and whether Sullivan should issue an order for Flynn to show cause as to why he should not face a criminal contempt charge for perjury after claiming innocence following a guilty plea.
Sullivan appointed Gleeson after issuing an order calling for amicus curiae, or "friend of the court" briefs over the DOJ's motion to dismiss Flynn's case.
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Flynn's attorney Sidney Powell wrote in a court filing following Sullivan's order that there is no local rule allowing for amicus briefs in criminal cases.
"A criminal case is a dispute between the United States and a criminal defendant. There is no place for third parties to meddle in the dispute, and certainly not to usurp the role of the government’s counsel," Powell wrote.
Former Utah U.S. Attorney Brett Tolman told "Fox & Friends" Wednesday morning that it was "an outrageous decision. National security attorney Brad Moss told Fox News that it was "rather unusual" given that amicus briefs typically are only seen in civil cases.
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In a Washington Post op-ed published last Monday, Gleeson and two co-authors defended Sullivan's decision to hold off on dismissing the case, writing that the DOJ’s motion to dismiss “is actually just a request — one that requires ‘leave of the court’ before it is effective.”
In a 2013 case where he served as judge, however, Gleeson wrote that prosecutors have "near-absolute power under [the Federal Rules of Criminal Procedure] to extinguish a case that it has brought" and that courts are "generally required to grant [the motion] unless dismissal is ‘clearly contrary to manifest public interest.'"
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