The DOJ will drop the criminal case against Gen. Michael Flynn for lying to the FBI about contact with a Russian Ambassador. Flynn pleaded guilty.
WASHINGTON – The Justice Department showed a “gross abuse of prosecutorial power” in its push to drop the case against Michael Flynn, President Donald Trump’s former national security adviser, a court-appointed arbiter said Wednesday.
Retired federal judge John Gleeson said the Justice Department’s bid to dismiss Flynn’s case should be denied because its arguments “are not credible,” suggesting the government violated safeguards designed to prevent “dubious dismissals of criminal cases that would benefit powerful and well-connected defendants.”
“The Department of Justice has a solemn responsibility to prosecute this case – like every other case – without fear or favor,” Gleeson argued. “It has abdicated that responsibility through a gross abuse of prosecutorial power, attempting to provide special treatment to a favored friend and political ally of the President of the United States. It has treated the case like no other, and in doing so has undermined the public’s confidence in the rule of law.”
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Gleeson’s searing rebuke is the latest in what has become a fraught and long-running prosecution of the former Army general. U.S. District Judge Emmet Sullivan, who has been overseeing the case for the past three years, appointed Gleeson to challenge the Justice Department’s motion to drop the case and to examine whether Flynn committed perjury in declaring his innocence for a crime he had earlier admitted.
In his brief filed Wednesday, Gleeson said Flynn did commit perjury, “for which he deserves punishment.” But instead of recommending that Flynn be charged, Gleeson said the court should consider that offense in sentencing Flynn for another crime – making false statements – to which he pleaded guilty earlier. The false statements charge stemmed from Flynn’s communications with a former Russian ambassador.
The legal clash has reached the federal appeals court in Washington, D.C., where Flynn accused Sullivan of abusing his discretion and asked the higher court judges to force the dismissal of the case.
In an interview with Fox News this week, Attorney General William Barr, who tapped an outside prosecutor to review the Flynn case, said Sullivan “is trying to set himself up as an alternative prosecutor.” The decision on whether to prosecute a person “is vested in the executive branch and not the courts,” Barr said.
The Justice Department declined to comment on Gleeson’s filing, referring to its own court papers calling on the court to dismiss the case.
In that motion, the department argued that its January 2017 interview, during which Flynn made false statements to the FBI, was “unjustified.” The interview did not have “a legitimate investigative basis,” making Flynn’s statements irrelevant “even if untrue,” the department argued.
The agency also pointed to recently unsealed documents showing investigators were prepared to close the Flynn investigation – code named Crossfire Razor – but decided to keep the probe open.
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Sullivan defended his decision to review the Justice Department’s effort to abandon the case, calling such a move “unprecedented.” He argued that rules governing federal criminal cases don’t require him to “serve as a mere rubber stamp.”
Sullivan argued that federal district judges have the authority to appoint a third party in a case – a practice the Supreme Court has not called into question, particularly in situations in which both sides agree, allowing the adversarial process to break down.
Flynn is one of a half-dozen Trump campaign aides and allies who were prosecuted as a result of the special counsel Russia investigation. He later reversed course, withdrawing his guilty plea and accusing Justice Department officials of trapping him into making false statements and not disclosing evidence that would’ve exonerated him.
In his brief, Gleeson cast the government’s reasons for dismissal as “so irregular, and so obviously pretextual, that they are deficient” and contradict the prosecutors’ own court filings before the Justice Department moved to dismiss the case.
“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,” Gleeson argued.
The FBI was conducting a counterintelligence investigation into possible ties between the Trump campaign and the Russian government when it interviewed Flynn in 2017. Flynn had made unusual back-channel communications with then-Russian ambassador Sergey Kislyak about foreign policy positions at odds with those of the outgoing Obama administration.
“When the FBI repeatedly asked Flynn about those communications, he chose to lie about them – just as he had lied to various senior White House officials,” Gleeson argued.
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Flynn’s guilt “is plain,” Gleeson said, adding that he pleaded guilty twice under oath – first in 2017 and again in 2018 when he reaffirmed his plea – and, in the process, detailed all the facts he knew and lied about to the FBI.
Gleeson lambasted Flynn’s claim that FBI agents trapped him into making false statements.
“If the agents were deviously trying to trick Flynn into lying, they did a terrible job,” Gleeson said, adding that agents gave Flynn multiple chances to tell the truth. “One doesn’t need to be a senior national security official entrusted with the Nation’s secrets to know not to lie to the FBI.”
Gleeson also said there is “ample evidence” that Flynn had committed perjury that could be prosecuted. The former national security adviser did not simply try to withdraw his guilty plea, “but did so by mounting a frontal assault on the integrity of the investigation.”
But Gleeson urged the court not to weigh the issue, suggesting that “the best response to Flynn’s perjury is not to respond in kind.” Instead, he asked the court to move on to sentencing, which has been postponed for two years.
“To help restore confidence in the integrity of the judicial process, the Court should return regularity to the process,” Gleeson said. “And the Court can best do that by denying the government’s motion to dismiss, adjudicating any pending motions, proceeding to sentencing, and factoring the defendant’s contemptuous conduct into the appropriate punishment.”