The outside amicus curiae appointed by the presiding judge in retired Lt. Gen. Michael Flynn’s criminal case argued the Justice Department is engaged in “a gross abuse of prosecutorial power.”
Judge Emmet Sullivan, a 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 Justice Department’s motion to drop the false statement charges against the former Trump national security adviser and to have the case tossed.
Gleeson, also a Clinton appointee who retired from the bench in 2016, said Wednesday that Sullivan should not grant the Justice Department’s request for a dismissal, arguing that “the Government’s statement of reasons for seeking dismissal is pretextual” and “the Government’s ostensible grounds for seeking dismissal are conclusively disproven by its own briefs filed earlier in this very proceeding.” He also claimed that the agency’s move to dismiss the case was “riddled with inexplicable and elementary errors of law and fact” and “leave of court should not be granted when the explanations the Government puts forth are not credible as the real reasons for its dismissal of a criminal charge.”
Sidney Powell, a former federal prosecutor who took over as Flynn’s lead defense attorney last summer, previously told the Washington Examiner that Sullivan’s decision to appoint an outsider like this was “bizarre and unconstitutional.” She argued that “this travesty of justice has already consumed three or more years of an innocent man’s life” and that “no further delay should be tolerated.”
The court-appointed amicus curiae also argued Wednesday that Sullivan should deny the Justice Department’s request “because there is clear evidence of a gross abuse of prosecutorial power.” He said Federal Rule of Criminal Procedure 48(a), which governs the handling of dismissals, “empowers courts to protect the integrity of their own proceedings from prosecutors who undertake corrupt, politically-motivated dismissals.” The former judge said, “That is what has happened here,” arguing that “the Government has engaged in highly irregular conduct to benefit a political ally of the President.”
“The facts of this case overcome the presumption of regularity,” Gleeson said. “The Court should therefore deny the Government’s motion to dismiss, adjudicate any remaining motions, and then sentence the Defendant.”
Sullivan said last month that should further address “whether the Court should issue an Order to Show Cause why Mr. Flynn should not be held in criminal contempt for perjury” related to certain criminal statutes and guidelines along with the court’s “inherent” power.
“Flynn has indeed committed perjury in these proceedings, for which he deserves punishment, and the Court has the authority to initiate a prosecution for that crime,” Gleeson said in Wednesday’s brief. “I respectfully recommend, however, that the Court not exercise that authority. Rather, it should take Flynn’s perjury into account in sentencing him on the offense to which he has already admitted guilt. This approach — rather than a separate prosecution for perjury or contempt — aligns with the Court’s intent to treat this case, and this Defendant, in the same way it would any other.”
Flynn’s lawyers have touted recently released FBI records as being exculpatory evidence that was concealed from the defense team. The documents suggest that now-fired FBI agent Peter Strzok and the FBI’s “7th floor” leadership stopped the bureau from closing its investigation into Flynn in early January 2017, even though investigators had uncovered “no derogatory information,” after intercepts of Flynn’s communications with a Russian envoy emerged. Emails from later that month show Strzok, along with FBI lawyer Lisa Page and several others, sought out ways to continue investigating Flynn, including by deploying the Logan Act.
And handwritten notes from top FBI counterintelligence official Bill Priestap show him questioning the FBI’s strategy: “What is our goal? Truth/Admission or to get him to lie, so we can prosecute him or get him fired?”
“The United States of America hereby moves to dismiss with prejudice the criminal information filed against Michael T. Flynn,” Timothy Shea, the now-former U.S. attorney for the District of Columbia, said in filing to dismiss the case against Flynn last month. “The Government has determined … based on an extensive review and careful consideration of the circumstances, that continued prosecution of this case would not serve the interests of justice.”
Jeffrey Jensen, the U.S. attorney for the Eastern District of Missouri who was picked by Attorney General William Barr to review the Flynn case earlier this year, said he “concluded the proper and just course was to dismiss the case” and advised Barr on his conclusions.
Powell took over Flynn’s representation from Covington & Burling LLP, under whose guidance 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. Former FBI Director James Comey has said he took advantage of the chaos of the early days of the Trump administration to make that interview happen, even as Deputy Attorney General Sally Yates opposed Comey’s actions.
Gleeson also criticized Flynn specifically for withdrawing his guilty plea. Earlier this year, Flynn said that he was “innocent of this crime.”
“A defendant cannot be permitted to abuse this solemn and careful process by opportunistically entering a plea, gauging the reaction of the court, and then, if dissatisfied with that reaction, falsely claiming that the initial plea was a lie — all in an attempt to require further court proceedings or escape a conviction,” the amicus argued. “Such self-serving gamesmanship obstructs the administration of justice by vitiating the plea process and wasting courts’ and prosecutors’ time and resources. The Court has its own compelling interest, independent of the Executive branch, in ensuring that parties do not abuse and manipulate its essential functions.”
The ex-judge also pointed to “at least 100 times” when Trump had either tweeted or retweeted something about the Flynn case, arguing that the president is “personally invested in ensuring that Flynn’s prosecution ends.”
“The Government is not persuaded that the January 24, 2017 interview was conducted with a legitimate investigative basis and therefore does not believe Mr. Flynn’s statements were material even if untrue,” Shea said in his court filing. “Moreover, we not believe that the Government can prove either the relevant false statements or their materiality beyond a reasonable doubt.”
Flynn’s attorneys were joined by the Justice Department in asking the D.C. Circuit for the U.S. Court of Appeals to issue a writ of mandamus instructing Sullivan to correct his ruling and to allow the Justice Department to dismiss the case, but Sullivan hired an outside lawyer to argue that he is not a “rubber stamp.”
