DOJ’s Conduct In Mike Flynn Case Is Scorched In New Filing By Ex-Judge

“The former judge who had been appointed as a friend-of-the-court in the Michael Flynn debacle railed against the Justice Department for its recent efforts to walk away from its prosecution.

“The Government has engaged in highly irregular conduct to benefit a political ally of the President,” John Gleeson, the court-appointed amicus, told U.S. District Judge Emmet Sullivan in a filing arguing against the case’s dismissal Wednesday.

Sullivan had appointed Gleeson to oppose the Justice Department’s request last month that Flynn’s case be dropped.

Gleeson on Wednesday called the DOJ’s reasons for dismissing the case “pretextual” and “conclusively disproven by its own briefs filed earlier in this very proceeding.”

“They contradict and ignore this Court’s prior orders, which constitute law of the case. They are riddled with inexplicable and elementary errors of law and fact. And they depart from positions that the Government has taken in other cases,” Gleeson, who also was once a federal prosecutor in New York, said.

While tearing apart the DOJ’s logic for now wanting to drop the case, Gleeson also accused the Department of “gross prosecutorial abuse.”

Gleeson argued that there had been a “severe breakdown in the traditional independence of the Justice Department from the President.”

DOJ’s decision to drop case “based solely on the fact that Flynn is a political ally of President Trump.”

Gleeson’s filing laid out the two reasons that a judge could deny prosecutors’ request to dismiss a case and said that both conditions were satisfied in the current situation. Specifically, the DOJ’s reasons for dropping the case were pretextual and they showed clear “clear evidence of gross prosecutorial abuse,” Gleeson argued.

He called the DOJ’s dismissal request 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.

DOJ’s claim it can’t prove the case is “not credible” and “preposterous.”

In requesting that Sullivan dismiss the case, the Justice Department said that it do not believe it could prove beyond a reasonable doubt that Flynn knowingly made false statements to the FBI that were material to its Russia probe.

Gleeson called that DOJ claim “not credible” and even “preposterous.”

DOJ’s “ties itself in knots”  to argue that Flynn’s lies didn’t affect Russia probe. 

Gleeson zeroed in on the Justice Department’s claim that it no longer believes that Flynn’s false statements were material to the investigation.

Gleeson called the Flynn case “about as straightforward a case of materiality as a prosecutor, court, or jury will ever see.”

Gleeson said that the DOJ’s attempt to argue that his lies did not affect the investigation are “riddled with legal and factual errors.”

“The Government ties itself in knots trying to disprove its own earlier filings, delving deep into the supposed ‘particular circumstances of this case’ to cobble together a convoluted narrative of immateriality,” Gleeson said.

DOJ’s reasons to doubt that Flynn lied “frankly make no sense.”

Gleeson also addressed the Justice Department’s claim that it wasn’t sure it could prove that Flynn knew he made false statements to the FBI. Gleeson called that argument a “a fallback”  that “is even more implausible than” the DOJ’s claims about whether Flynn’s lies impact its investigation.

“In its motion to dismiss, the Government tosses out a grab-bag of justifications to explain its sudden reservations. But these assertions do not add up and frankly make no sense,” Gleeson said.

There has been a “severe breakdown in the traditional independence of the Justice Department from the President.”

Gleeson devoted a section of his brief to document the President’s repeated tweets and other public statements about the Flynn case.

“These tweets were issued against the background of a severe breakdown in the traditional independence of the Justice Department from the President,” Gleeson said.

He argued that the DOJ had “unreviewable discretion” not to charge Flynn because he was an ally of the President and that Trump had “unreviewable authority” to prosecute him.

“But the instant the Executive Branch filed a criminal charge against Flynn, it forfeited the right to implicate this Court in the dismissal of that charge simply because Flynn is a friend and political ally of the President,” Gleeson wrote.

Read the filing below: