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Editorial Advisory Board: Sullivan made the right move in Flynn case

Judge Emmett Sullivan is not letting self-convicted Gen. Michael Flynn off the hook Flynn hung himself on, at least not yet. The Department of Justice seeks to erase Flynn’s prosecution, but Sullivan, the judge who took Flynn’s confession of guilt, has appointed John Gleeson, a retired federal judge and former prosecutor, to challenge the Department of Justice’s efforts, if warranted, and to advise whether Flynn should be charged with perjury.

The government’s move to drop these charges is, no doubt, highly unusual at this stage. Legal commentators are unable to recall any similar circumstances.

We believe that the court should be highly skeptical of the efforts of the Department of Justice to drop charges against Flynn and have his conviction tossed following its successful prosecution of Flynn. These two positions, convict and erase the conviction, now taken by the same source would appear to whipsaw the court.

We think that the court should look very carefully at the doctrine of judicial estoppel, an equitable doctrine that is intended to protect the integrity of the judicial process by preventing a litigant, such as a Department of Justice or Flynn, from playing fast and loose with the court. The doctrine has been held to apply to a party’s legal and factual assertions.

We do recognize, however, an exception to the application of this equitable doctrine as held by the U.S. Supreme Court in New Hampshire v. Maine and this is, simply put, the party must have a good explanation for its change in position. For example, if a moving party’s request to erase a conviction was based on inadvertence or mistake it may be appropriate not to apply judicial estoppel.

We do not have all of the facts and we are pleased that Sullivan appointed retired Judge Gleeson to thoroughly investigate the circumstances leading to the Department of Justice’s effort to drop the charges. We hope that the Department of Justice will be fully forthcoming with any requests made by this retired judge.

Not that he would not do so anyway, but we call upon Sullivan to make public the entire results of Gleeson’s efforts. Transparency is sorely needed in these circumstances.

We are convinced Sullivan will do what is right and in the best interest of justice and that Gleeson will be of great assistance and provide integrity to the process.

Editorial Advisory Board members James K. Archibald, Arthur F. Fergenson, Leigh Goodmark, Michael Hayes, James Haynes and Debra G. Schubert did not participate in this opinion.


James B. Astrachan, Chair

James K. Archibald

Arthur F. Fergenson

Nancy Forster

Susan Francis

Leigh Goodmark

Michael Hayes

James Haynes

Ericka N. King

Stephen Z. Meehan

C. William Michaels

Angela W. Russell

Debra G. Schubert

H. Mark Stichel

Vanessa Vescio (on leave)

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.