Media reports following Friday’s oral argument in the Michael Flynn criminal case focused on the D.C. Circuit Court of Appeals’ apparent hesitancy to order Judge Emmet Sullivan to dismiss the criminal charge against Flynn. But a second and more troubling theme went unnoticed: the further politicalizing of the judicial system.

The right has long condemned the unfortunate conversion of the third branch from a neutral arbiter of the law to a politically motivated policymaker. No longer do judges say what the law is; they pretend the law says what they want it to say. Last week’s oral argument exposed a further degeneration of our supposedly impartial judiciary—that judges are moving beyond policymaking to outright electioneering.

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Sullivan, the trial judge presiding over the Flynn criminal case, crossed that line when he appointed retired judge John Gleeson to serve as an amicus curiae, or friend of the court, and direct Gleeson to oppose the government’s motion to dismiss the criminal charge against Flynn. Flynn, who had entered into a plea agreement with the special prosecutor’s office for making false statements to FBI agents, sought to withdraw his plea and have the charge dismissed based on ineffective assistance of counsel and evidence of prosecutorial misconduct.

While that motion remained pending, an independent review of the case by Missouri-based U.S. Attorney Jeff Jensen revealed prosecutors had withheld material exculpatory evidence from Flynn. Based on his review and that evidence, Jensen recommended dismissal of the charge against Flynn.

Following this recommendation, the acting U.S. attorney for the District of Columbia filed a motion to dismiss the charge against Flynn, supporting that motion with a detailed explanation of the Department of Justice’s reasoning, along with copies of the evidence improperly withheld from Flynn. Yet rather than dismiss the case, Judge Sullivan announced he would accept amicus curiae briefs from the public, then appointed Gleeson as a friend to the court to argue against dismissal.

Appointing a Deeply Biased ‘Friend of the Court’

Sullivan’s selection of Gleeson gave the game away because, just two days earlier, Gleeson’s co-authored anti-Flynn, anti-Trump op-ed ran in the Washington Post. In that opinion article, Gleeson argued the charge against Flynn should not be dismissed and proclaimed “the record reeks of improper political influence.”

When Gleeson filed his amicus brief last week with the trial court, just days before the D.C. Circuit’s oral argument, he provided Sullivan everything he wanted and then some. In a 70-page screed, far exceeding the 25-page maximum allowed by court rules—a standard Sullivan waived for the purpose—Gleeson took America on a reunion tour of the Russia collusion hoax, before impugning the integrity of Attorney General William Barr and President Donald Trump. Flynn was once again merely collateral damage.

So obvious was Gleeson’s political hit that even the soft-spoken Judge Karen Henderson branded the amicus “intemperate” and his brief “over the top” during last week’s oral argument before the D.C. Circuit. But by then the press had already presented Gleeson’s brief as conclusive evidence of malfeasance—by Flynn, Barr, and Trump—establishing Gleeson’s brief served as the judicial equivalent of the Christopher Steele dossier.

Political Cronyism Endemic to This Case

Using the law firm of Perkins and Coie as a conduit, Hillary Clinton and the Democratic National Committee (DNC) funded the conspiracy claims Steele peddled to the Federal Bureau of Investigation and DOJ. The FBI and DOJ then provided the Clinton team a government assist in the 2016 election year targeting of the Trump campaign.

Now we see Gleeson enlisted a cadre of lawyers to help craft the “over the top” brief he provided Sullivan as the court-appointed amicus. The handful of lawyers named on Gleeson’s brief included donors to Biden for President, as well as a former Obama administration attorney who later represented Trump-fired former DOJ official Sally Yates during her congressional testimony concerning Crossfire Hurricane.

Maybe Biden and the DNC didn’t compensate these lawyers for their work, but heading into the 2020 election, the Democrat presidential candidate surely benefitted from this pro bono work. And by opening his courtroom to Gleeson and other anti-Flynn amici, Judge Sullivan has converted the judicial branch into an emissary of the Democratic Party, much as James Comey and Andrew McCabe converted the FBI into an opposition-research arm of the DNC.

Government Backing of Politically Biased Attacks

Further, just as the FBI’s briefing to Trump on the “salacious and unverified dossier” created an appearance of legitimacy to the Democrat propaganda, Judge Sullivan provided a government imprimatur to the anti-Trump ramblings in Gleeson’s brief. While in the case of Steele’s dossier, someone needed to leak details of Comey’s briefing of the dossier to Trump to the media, Judge Sullivan’s public docket provides the press access to the friends of Biden brief.

And the media responded predictably: “Outsider Tapped in Flynn Case Calls Justice Dept. Reversal a ‘Gross Abuse’ of Power,” The New York Times proclaimed. “A former federal judge said that the attorney general gave special treatment to a presidential ally, undermining public confidence in the rule of law,” the Times continued.

The Washington Post parroted this narrative in its coverage of Gleeson’s filing, writing that “a former federal judge appointed to review the Justice Department’s motion to dismiss criminal charges against President Donald Trump’s former national security adviser Michael Flynn said there was evidence of a ‘gross abuse’ of prosecutorial power and that the request should be denied.”

Ruining a Man’s Life for Political Revenge

During Friday’s oral argument, Flynn’s attorney Sidney Powell and the DOJ, represented by Principal Deputy Solicitor General Jeff Wall, entreated the D.C. Circuit to end the spectacle Judge Sullivan started. Powell, who had petitioned the appellate court for mandamus—legal jargon for an order directing a lower court to act as required by law—stressed the toll to her client from the unnecessary prolonging of the proceedings, calling it “irreparable harm.”

“The harms are obvious to General Flynn,” Wall concurred, but further argued that the politicization of the process necessitated the appellate court to act now, rather than wait for Judge Sullivan to hold a hearing on the government’s motion to dismiss in mid-July.

“We can’t ignore that it is playing out in a politicized environment that has been made worse by” the 70-page amicus curiae brief, “which alleges the president and attorney general have engaged in great misconduct,” Wall stressed. Judge Sullivan’s behavior threatens not merely “the executive and its prosecutorial discretion and its deliberative process, but frankly, threatens to do harm to the judiciary as well,” Wall added.

“The court has to take account of the fact that [Judge Sullivan’s] brief and amicus impugn the motives of the attorney general of the United States,” the DOJ attorney argued, and that is going to pull the judiciary into a political fight. . .

(Excerpt from the Federalist. Article by Margot Cleveland.)