The legal team for retired Lt. Gen. Michael Flynn and the Justice Department separately pushed back in court against the arguments presented by the outside amicus appointed by the judge who declined to dismiss the case quickly.
Judge Emmet Sullivan, a President Bill Clinton appointee who has been handling the Flynn case since December 2017, appointed retired New York federal Judge John Gleeson in May to serve as an amicus curiae to present arguments in opposition to the DOJ’s motion to drop the false statement charges against the former Trump national security adviser, even asking Gleeson to look into possible perjury or contempt charges against Flynn.
The Flynn team, led by former federal prosecutor Sidney Powell, filed a 53-page response with the court on Wednesday, arguing that “this court exceeded its authority under the Constitution to solicit amici and to appoint an amicus” and that “that chosen amicus has now engaged in a flagrant personal and partisan assault on General Flynn, Attorney General Barr, and the President of the United States.” Powell said that “this court’s friend simply ignores the indisputable, newly-produced evidence proving that it is General Flynn who was singled out for a baseless, politically motivated investigation and prosecution.”
Gleeson presented his argument to the court last week, accusing the DOJ of “a gross abuse of prosecutorial power” in moving to dismiss the Flynn case and that “the Government has engaged in highly irregular conduct to benefit a political ally of the President.”
“The irony and sheer duplicity of Amicus’s accusations against the Justice Department now — which is finally exposing the truth — is stunning,” Powell argued on Wednesday. “Amicus’s filing is a ‘wrap-up smear.’ It is an affront to the Rule of Law and a raging insult to the citizens of this country who see the abject corruption in this assassination by political prosecution of General Flynn. This court exuviated any appearance of neutrality when it unlawfully appointed Amicus as its own adversary to make these scurrilous arguments.”
Flynn’s team said that “this court must grant the Government’s Motion to Dismiss with prejudice to which General Flynn has consented” and that “this court is foreclosed by all relevant precedent from going behind the current record on the Government’s Motion to Dismiss” because of “fundamental principles of separation of powers.”
Powell argued there were “flagrant” violations by the court of the federal rules governing pleas when Flynn’s guilty plea was entered, including being “blind-sided by this court’s ‘extended plea colloquy’ at what was to be his sentencing.” Flynn’s lawyers argued that “even more egregious” was the fact that Sullivan accepted Flynn’s plea when Flynn was still represented by attorneys “who had a non-consentable conflict of interest” and while there were still “significant” issues related to allegedly exculpatory information being withheld.
“The only lawful action this court can take is to dismiss the case with prejudice on the Government’s motion and vacate the plea,” Powell said.
Last week, the Flynn team and DOJ lawyers argued separately before the U.S. Court of Appeals in D.C. against an outside lawyer hired by Sullivan, urging the court to issue a writ of mandamus telling the judge to dismiss the case.
The DOJ’s 49-page court filing on Wednesday, signed by Assistant U.S. Attorney Jocelyn Ballantine, said that “the Constitution vests in the Executive Branch the power to decide when — and when not — to prosecute potential crimes.” The agency said that it “exercised that Article II power here” when on May 7 it moved to dismiss the Flynn case. Ballantine said that “that motion represents the authoritative position of the Executive” and said that it “provides three alternative grounds” for the dismissal: that “the interests of justice” don’t support continuing the case, that proving to a jury the “materiality” of Flynn’s alleged lies “would be difficult,” and that proving “willful falsity” to a jury “would be difficult.”
Ballantine said that, following the January 2017 interview in which Flynn allegedly lied to the FBI, the agents were under the impression that Flynn “was not lying or did not think he was lying.” The DOJ said that, in the view of the FBI agents, “it was possible that Flynn really did not remember the substance of his calls with Kislyak.”
Flynn’s lawyers have touted recently released FBI records that suggest that now-fired FBI agent Peter Strzok and the FBI’s leadership stopped the bureau from closing its investigation into Flynn in early January 2017, even though investigators had uncovered “no derogatory information.” Emails from later that month showed Strzok, along with FBI lawyer Lisa Page and several others, sought out ways to continue investigating Flynn, including by deploying the Logan Act.
Powell took over Flynn’s representation from law firm Covington & Burling, under the guidance of which Flynn pleaded guilty in December 2017 to lying to investigators about his conversations with Russian diplomat Sergey Kislyak. The U.S. government intercepted Flynn’s discussions with Kislyak, after which Strzok and another agent, believed to be Joseph Pientka, grilled him on the contents of the conversation on Jan. 24, 2017.
The DOJ argued Wednesday that “since the time of the plea, extensive impeaching materials had emerged about key witnesses the government would need to prove its case.” The government said that Strzok was fired from the FBI in part because of potential bias detailed in his texts, said that Pientka “has been accused of acting improperly in connection with the broader investigation” related to a defensive briefing in the summer of 2016, and reiterated that FBI Deputy Director Andrew McCabe “was fired for conduct that included lying to the FBI and lying under oath.”
“Under Article II, a court has no power to review that exercise of prosecutorial discretion. And under Article III, there is no longer any case or controversy between the government and the defendant over which this Court may properly exert judicial power,” the DOJ argued.
Gleeson, a Clinton appointee who retired in 2016, said last week that Sullivan should not grant the DOJ’s request for a dismissal, arguing that “the Government’s statement of reasons for seeking dismissal is pretextual” and that “the Government’s ostensible grounds for seeking dismissal are conclusively disproven by its own briefs filed earlier in this very proceeding.”
