The court-appointed outside counsel in the case against retired Lt. Gen. Michael Flynn urged the presiding judge to reject the Justice Department’s motion to dismiss the case following the unearthing of information related to the former national security adviser’s legal fight.
The Justice Department told the district court in May that “continued prosecution of this case would not serve the interests of justice” as it sought to drop its case against Flynn after new records were made public. Instead, District Court Judge Emmet Sullivan, an appointee of President Bill Clinton who has handled the Flynn case since December 2017, appointed retired New York Judge John Gleeson to serve as an amicus curiae (“friend of the court”) to present arguments in opposition to the Justice Department’s motion and to explore whether Flynn should be charged with perjury or contempt.
“To describe the Government’s Motion to Dismiss as irregular would be a study in understatement. In the United States, Presidents do not orchestrate pressure campaigns to get the Justice Department to drop charges against defendants who have pleaded guilty — twice, before two different judges — and whose guilt is obvious,” Gleeson wrote in a 30-page Friday court filing. “And the Justice Department does not seek to dismiss criminal charges on grounds riddled with legal and factual error, then argue that the validity of those grounds cannot even be briefed to the Court that accepted the defendant’s guilty plea. Nor does the Justice Department make a practice of attacking its own prior filings in a case, as well as judicial opinions ruling in its favor, all while asserting that the normal rules should be set aside for a defendant who is openly favored by the President. Yet that is exactly what has unfolded here.”
Flynn’s team previously countered Gleeson, saying, “The irony and sheer duplicity of Amicus’s accusations against the Justice Department now — which is finally exposing the truth — is stunning.”
“There is clear evidence that the Government’s Motion to Dismiss the case against Defendant Michael T. Flynn rests on pure pretext. There is clear evidence that this motion reflects a corrupt and politically motivated favor unworthy of our justice system,” Gleeson claimed on Friday. “In the face of all this, the Government makes little effort to refute (or even address) the evidence exposing its abuses—and the arguments it does advance only further undermine its position. Instead, the Government invokes a parade of false formalities that would reduce this Court to a rubber stamp. The Government’s motion should therefore be denied.”
“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,” the Justice Department said in its May motion to dismiss. “Moreover, we not believe that the Government can prove either the relevant false statements or their materiality beyond a reasonable doubt.”
Flynn, a target of special counsel Robert Mueller’s Russia investigation, pleaded guilty in December 2017 to lying to FBI investigators about his December 2016 conversations with a Russian envoy. But after changing legal teams, Flynn claimed he was innocent and had been set up by the FBI. After Attorney General William Barr appointed U.S. Attorney Jeffrey Jensen to review the Flynn case, a host of new documents deemed exculpatory by Flynn’s lawyers were discovered. Jensen “concluded the proper and just course was to dismiss the case” and recommended this to Barr.
Former FBI Director James Comey admitted last year he took advantage of the chaos in the early days of President Trump’s administration, when he sent now-fired FBI special agent Strzok and another FBI agent believed to be Joseph Pientka to talk to Flynn.
The full U.S. Court of Appeals for the District of Columbia Circuit reversed a three-judge appeals court panel decision in late August and denied Flynn’s effort to have the case against him swiftly dropped. The 8-2 decision, a significant blow to Trump’s first national security adviser, threw the case back to Sullivan, who refused to allow the Justice Department to dismiss it quickly. The politically charged legal fight now threatens to extend up to and past the Nov. 3 presidential election.
Last month, both Flynn’s legal team and the Justice Department were unsuccessful in trying to convince the full appeals court that the district court judge should be instructed to allow the Justice Department to drop the case. Sullivan’s lawyer said the judge should be allowed to hold a hearing before making a decision on the Justice Department’s motion to dismiss.
Sidney Powell, the former federal prosecutor who took over Flynn’s legal defense last year, and acting Solicitor General Jeff Wall, representing the Justice Department in court following its move to toss the false statements charge against Flynn, argued that Sullivan appeared biased against Flynn, including through his appointment of Gleeson as amicus curiae, his resistance to drop the case, and his alleged violation of separation of powers. Flynn’s team also argued that Sullivan’s alleged bias should disqualify him from handling the case.
Sullivan had asked for a rehearing from the entire appeals court, and his lawyer, Beth Wilkinson, said he should be allowed to hold a hearing on the Justice Department’s motion to dismiss, saying fears about intrusive questions were speculative.
Recently declassified FBI documents show that the counterintelligence briefing Pientka gave to Trump during the 2016 campaign was used as a pretext to gather investigative evidence on the Trump campaign team, including Flynn.
Documents declassified earlier this year indicate that Strzok abruptly stopped the FBI from closing its investigation into Flynn in early January 2017 at the insistence of the FBI’s “seventh floor” after the bureau had uncovered “no derogatory information” on Flynn.
Notes from Bill Priestap, the FBI’s former head of counterintelligence, show him asking, “What is our goal? Truth/Admission or to get him to lie, so we can prosecute him or get him fired?”
