The U.S. Justice Department’s request to drop the criminal case against former national security adviser Michael Flynn is a politically motivated attempt to help an ally of President Donald Trump and should be denied, a retired federal judge said.
Flynn should instead be sentenced as originally planned after he pleaded guilty to lying to federal agents, according to a brief filed Wednesday by John Gleeson, who was named as a “friend of the court” to argue against the government.
The law allows courts to protect “the integrity of their own proceedings from prosecutors who undertake corrupt politically motivated dismissals,” Gleeson said in the filing in Washington. “That is what has happened here.”
Gleeson’s brief escalates a legal battle full of surprises since Flynn, a retired Army lieutenant general, was charged in 2017 in the early days of the Russia probe. After initially pleading guilty and agreeing to cooperate with the government, he sought to change his plea as prosecutors said he wasn’t being truthful with them. Trump has denounced the case as a political assault, adding to concerns that the dismissal request is the result of a pressure campaign.
U.S. District Judge Emmet Sullivan tapped Gleeson last month, arguing that his input was necessary because the government’s “unprecedented” move was based on minimal legal authority and made under unusual circumstances. Flynn has argued that Sullivan doesn’t have a right to decide, and that he’s exceeding his judicial authority by not immediately throwing the case out.
Sullivan has scheduled a July 16 hearing on the government’s motion.
Gleeson also was tasked with advising whether Flynn should be held in criminal contempt of court for perjury for attempting to withdraw his guilty plea, which was made under oath. In his brief, Gleeson said Flynn had indeed perjured himself and that a separate prosecution on that crime was warranted. But the former judge advised the court against it.
“Rather, it should take Flynn’s perjury into account in sentencing him on the offense to which he has already admitted guilt,” Gleeson said. “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 lawyer, Sidney Powell, declined to comment and said she’d respond with a brief of her own later Wednesday.
Attorney General William Barr’s Justice Department said in a May 7 filing that dismissal was warranted because Flynn’s lies to two FBI agents in January 2017 weren’t “material” to the Russia probe and that the agents didn’t have a proper “investigative purpose” in interviewing him.
Instead, Sullivan named Gleeson to the case and said he’d accept friend-of-the-court briefs from outside individuals and parties, making it clear he wouldn’t rubber-stamp the Justice Department’s motion.
Gleeson concluded that the judge’s move was justified. “The government has engaged in highly irregular conduct to benefit a political ally of the president,” he said. “The facts of this case overcome the presumption of regularity.”
The case could be cut short before Sullivan has a chance to decide. Flynn on May 19 filed an emergency petition with the U.S. Court of Appeals in Washington seeking an order that would force Sullivan to dismiss the case. A three-judge panel of the court ordered Sullivan to explain his position, prompting the judge to hire a trial attorney to represent him in the matter.
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