The Justice Department’s move to drop charges against Michael Flynn “reflects a corrupt and politically motivated favor unworthy of our justice system,” the court-appointed attorney arguing against the Justice Department’s motion to dismiss stated in a Friday filing.
“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,” wrote John Gleeson, a former federal judge and prosecutor appointed to oppose the Justice Department in the case.
The extraordinarily scathing brief alleges in detail and with precision that the Justice Department broke from decades of procedure to help out a friend of President Trump’s. Dripping with contempt for the government’s position, Gleeson argued that federal prosecutors were too lazy to respond to earlier arguments he had made, including whether the content of Flynn’s lies was material.
He added that the DOJ typically does not “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,” Gleeson wrote.
Judge Emmett Sullivan was allowed to proceed last month in examining the circumstances around the DOJ’s decision to drop its case against Flynn after an appeals court rejected Flynn’s attempt to force the district judge to grant the government’s motion to drop the charges.
The Justice Department moved to drop its charges against Flynn in May, an unprecedented decision that has triggered enormous fallout while standing as a marker in the politicization of federal law enforcement under the Trump administration.
Flynn appealed after Judge Sullivan refused to grant the DOJ’s motion to drop the case, and instead requested outside parties weigh in on how he should handle the case, including asking Gleeson to file briefs opposing the DOJ.
The D.C. appeals court found that Sullivan could proceed in examining how and why the case was dropped, particularly after Flynn pleaded guilty and then withdrew his plea after an abortive December 2018 sentencing hearing.
The government has argued that Judge Sullivan lacks the authority to deny the motion to dismiss.
In the reply brief Friday, Gleeson rejected that argument. He likened the situation to one in which a motion to dismiss a case had “resulted from a bribe of the prosecutor,” saying that judges can deny in such an example.
That thought experiment involving a bribed prosecutor had beguiled appeals court judges hearing the case, forcing the DOJ to argue that misconduct should at the end of the day be resolved by the political, and not legal, process if it reaches the highest levels of federal law enforcement.
Gleeson suggested that, should Sullivan decide to deny the government’s motion to dismiss, he would be within his rights to appoint a prosecutor to continue the case against Flynn independent of the DOJ.
“After all, there are other settings in which the need to vindicate the independent interests of the Judiciary empowers a judge to appoint a prosecutor despite the unwillingness of the Justice Department to be involved,” Gleeson wrote in a footnote.
Much of Gleeson’s brief — though nominally devoted to responding to the DOJ’s filings in the lower court — addressed the implications of those arguments that were drawn out during the appellate phase.
For example, the Trump DOJ has argued that Sullivan’s inquiry would result in “grave harm” to the executive branch — potentially because it could reveal otherwise secret prosecutorial discussions.
But Gleeson argued that there is no such threat, and that instead the Justice Department was facing the normal back-and-forth between judges and defense attorneys that typically occurs in any criminal case.
Gleeson described the government’s argument as “radical,” saying that it would “transform run-of-the-mill courtroom interactions into separation of powers violations.”
In arguing against the DOJ, Gleeson asserted that the government either failed to respond to allegations about its misconduct and mischaracterization of the Flynn prosecution, or retreated from its earlier claims.
Gleeson noted, for instance, that the DOJ initially argued that discrepancies in FBI note-taking suggested a sloppy and nefariously handled case. It then retreated from that position, Gleeson said. He argued that the government’s later, partly retracted position – that such differences don’t always matter – marks a significant concession.
“The Government now concedes that such minor ‘discrepancies would not always be significant’ in other cases — presumably those not involving the President’s political allies — and thus that these purported concerns have no independent force,” Gleeson wrote.
Gleeson added that the government has also failed to directly address allegations that the Flynn case was dropped due to pressure from President Trump.
“Indeed, the Government nowhere even mentions the President’s personal lobbying, let alone his virulent attacks on those previously involved in this prosecution,” Gleeson wrote. “Based entirely on evidence already in the public view, the only coherent explanation for the Government’s exceedingly irregular motion — as well as its demonstrable pretexts — is that the Justice Department has yielded to a pressure campaign led by the President for his political associate.”
Gleeson concludes the brief by drawing in other recent examples of DOJ politicization: Attorney General Bill Barr’s move to argue for a lighter sentence for Roger Stone, triggering the resignation of four line prosecutors, and the debacle over the firing of U.S. Attorney for the Southern District of New York Geoffrey Berman.
“Of course, those examples merely provide context,” Gleeson wrote. “In resolving the Government’s request for leave, the only evidence that ultimately matters is the record I have outlined above: a record replete with patently pretextual attempts to justify what is plainly a corrupt political errand for the President.”
Read the filing here: