The federal judge presiding over retired Lt. Gen. Michael Flynn’s case appointed an outsider to argue against the Justice Department’s motion to drop the charges and to consider whether President Trump’s former national security adviser should be held in contempt.
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 to serve as an amicus curiae to “present arguments in opposition to the government’s Motion to Dismiss.” The U.S. District Court judge for the District of Columbia said Gleeson, also a Clinton-appointee who retired from the bench in 2016, 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 authority.”
Sidney Powell, a former federal prosecutor who took over as Flynn’s lead defense attorney last summer, called Sullivan’s order “bizarre and unconstitutional” in a short comment to the Washington Examiner.
The ruling by Sullivan came the same day that GOP senators made public declassified unmasking requests by top Obama administration officials targeting Flynn in the final weeks of Obama’s presidency. Then-Vice President and 2020 presumptive Democratic presidential nominee Joe Biden was listed as an authorized recipient of unmasking intelligence on Flynn in January 2017.
The Justice Department filed on Thursday to dismiss charges against Trump’s former national security adviser Michael Flynn, who cooperated with Mueller investigators after pleading guilty to lying to the FBI about his contacts with a Russian diplomat.
In moving to drop the charges last week, the Justice Department said that after reviewing newly disclosed materials, it agreed with Flynn’s attorneys that his interview with the FBI should never have taken place because his conversations with the Russian ambassador were “entirely appropriate.”
Sullivan invited outside opinions on Tuesday, which prompted a stern rebuke from Flynn’s legal team.
“This travesty of justice has already consumed three or more years of an innocent man’s life,” said Powell, adding that “no further delay should be tolerated.”
Gleeson, who spent years as a U.S. district court judge for the Eastern District of New York following his time as chief of the Criminal Division in the U.S. Attorney’s Office there, co-authored an op-ed this week in the Washington Post, arguing that “the Justice Department’s move to dismiss the prosecution … does not need to be the end of the case — and it shouldn’t be.”
Gleeson said the Justice Department “has made conflicting statements to the federal judge overseeing the case,” and Sullivan “has the authority, the tools, and the obligation to assess the credibility of the department’s stated reasons for abruptly reversing course.”
Gleeson also argued Sullivan should force the Justice Department to make all of the Flynn-Kislyak conversations public, claiming that “by ordering disclosure of the transcripts, the court can empower the American public to judge for itself — and assess why the department is trying to walk away from this important case.”
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 then-FBI lawyer Lisa Page and several others, sought out ways to continue investigating Flynn, including by deploying the Logan Act.
“The United States of America hereby moves to dismiss with prejudice the criminal information filed against Michael T. Flynn,” Timothy Shea, the U.S. attorney for the District of Columbia, said in filing to dismiss the case against Flynn. “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 Thursday that 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 made it clear that 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.
“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.”
