Justice Dept. blasted over Flynn case
Retired judge: Intervention in case is ‘gross abuse’ of power
WASHINGTON — A retired federal judge accused the Justice Department on Wednesday of a “gross abuse of prosecutorial power” and urged a court to reject its attempt to drop the criminal case against Michael Flynn, President Donald Trump’s former national security adviser.
The arguments in a 73-page brief by John Gleeson, the retired judge and former mafia prosecutor appointed to argue against the Justice Department’s unusual effort to drop the Flynn case, were the latest turn in a politically charged case that now centers on the question of whether Flynn should continue to be prosecuted. He said Flynn should be sentenced.
The Justice Department’s intervention last month, directed by Attorney General William Barr, came after a long public campaign by Trump and his allies and prompted an outcry from former law enforcement officials that the administration was further politicizing the department.
Flynn’s lawyers and the Justice Department have sought to bypass Gleeson and the federal judge in the case who appointed him, Emmet G. Sullivan. An appeals panel will hear arguments Friday about whether to dismiss the case without allowing Sullivan to conduct his review of the department’s request to withdraw the charge against Flynn.
Gleeson’s brief amounted to a step-by-step dissection of the factual claims and legal arguments the Justice Department put forward last month to justify withdrawing a charge of making false statements that Flynn had twice pleaded guilty to. Gleeson said the department’s intervention was an example of the kind of “corrupt, politically motivated dismissals” that judges have the power to guard against.
“The reasons offered by the government are so irregular, and so obviously pretextual, that they are deficient,” Gleeson wrote. “Moreover, the facts surrounding the filing of the government’s motion constitute clear evidence of gross prosecutorial abuse. They reveal an unconvincing effort to disguise as legitimate a decision to dismiss that is based solely on the fact that Flynn is a political ally of President Trump.”
But he also said that Flynn should not be held in criminal contempt of court for lying under oath when he gave conflicting statements about his actions to Sullivan, a possibility that the judge had raised when appointing Gleeson last month.
The Justice Department plans to file its response to Gleeson’s brief in the coming days. But it is not clear whether Sullivan will get to complete his review and make the final decision. Flynn’s lawyer, Sidney Powell, and the Justice Department have asked the Court of Appeals for the District of Columbia Circuit to order him to dismiss the case against Flynn without further review.
They accused Sullivan of abusing his power by appointing Gleeson to offer counterarguments rather than immediately ending the matter, citing a 2016 opinion by the appeals court that said that the judiciary “generally lacks authority to secondguess” executive branch decisions about whether to charge or drop a case.
In a filing last week before the appeals court, a lawyer for Sullivan urged a threejudge panel not to short-circuit his review, saying he would not necessarily adopt the arguments put forward by Gleeson.
The spectacle of both the district and appeals courts simultaneously dealing with the same case is unusual, said Samuel Buell, a law professor at Duke University and a former federal prosecutor. Gleeson’s filing will not legally affect the appeals court panel’s decision on whether to end the case without further review, he said, but “it will contribute to the overall atmosphere with regard to the propriety of the government’s motion to dismiss.”
To justify Barr’s decision to drop the case, the Justice Department has argued that Flynn’s lies were not “material” to any legitimate investigation — rejecting the department’s own previous position that his lies were relevant to the counterintelligence inquiry into the scope of Russia’s covert operation to tilt the 2016 election in Trump’s favor and the nature of links to Trump campaign associates.
Gleeson, who had co-written an op-ed article calling into question the legitimacy of Barr’s intervention before Sullivan appointed him, offered a blistering critique of that rationale.
“Pursuant to an active investigation into whether President Trump’s campaign officials coordinated activities with the government of Russia, one of those officials lied to the FBI about coordinating activities with the government of Russia,” Gleeson wrote. “It is hard to conceive of a more material false statement than this one.”
Flynn pleaded guilty in December 2017 to lying to the FBI about his conversations with the Russian ambassador, during the transition period after Trump won the 2016 election. The Obama administration was taking actions to punish Russia for its interference in the American democratic process, including imposing sanctions on Russian intelligence agencies and expelling Russian officials from the United States. Flynn and the Russian ambassador at the time, Sergey Kislyak, discussed the moves.
American officials intercepted those calls because they were wiretapping Kislyak. Recently declassified transcripts showed that Flynn urged Moscow not to escalate the dispute — holding out the prospect of working together after Inauguration Day.
The ambassador later told Flynn that he had conveyed “your proposal” and that Russia’s government had decided to moderate its response as a result.
Flynn twice pleaded guilty to a criminal charge of making false statements. His plea was part of a deal to cooperate with prosecutors, which also resolved Flynn’s criminal liability for lying to the FBI about another part of his conversation with Kislyak involving a United Nations issue, for failing to register as a paid foreign agent of Turkey in 2016, and for signing forms where he lied about that work.