The judge presiding for Michael Flynn’s case was told by the former prosecutor he appointed to advise him that he should deny the Justice Department request and move towards sentencing Flynn.
The former prosecutor found that the DOJ had committed a “gross abuse of prosecutorial power” in moving to drop the charges against Flynn, and that its explanation for doing so was “pretextual.”
John Gleeson, who also is a retired judge, told U.S. District Judge Emmet Sullivan that the Justice Department’s reasons for wanting the case dismissed were contradictory and were disproven by previous filings in the case.
“They contradict and ignore this Court’s prior orders, which constitute law of the case,” Gleeson said of the DOJ’s new reasons for why the case should be dismissed. “They are riddled with inexplicable and elementary errors of law and fact.”
Gleeson described the DOJ’s explanations for dropping the case as “not credible,” saying that it was involved in “corrupt, politically motivated dismissals.”
“The Government has engaged in highly irregular conduct to benefit a political ally of the President,” Gleeson wrote.
Gleeson recommended to Sullivan that, rather than initiate a separate contempt proceeding against Flynn for perjury, he should take into account Flynn’s perjury during sentencing in the underlying case.
“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,” Gleeson wrote.
For Flynn, that would mean sentencing on the single felony count of false statements to which he pleaded guilty in December 2017.
Gleeson ran through the history of the case against Flynn, noting pointedly that the focus of FBI officials’ concerns in the probe was counterintelligence-related, and not political as the DOJ suggested in its motion to drop the charges.
“Russia was a geopolitical adversary that had just interfered with the American electoral process, yet Flynn was quietly making conciliatory overtures that undercut the just- announced measures intended to convey the seriousness with which the United States regarded that incursion,” Gleeson wrote.
Gleeson also emphasized in the filing Trump’s own promises to Flynn, purportedly made on the day of his February 2017 resignation from the position of National Security Adviser.
“On Flynn’s final day, the President hugged him and said, ‘You’re a good guy. We’ll take care of you,’” the filing reads. “In his resignation letter, Flynn thanked Trump ‘for his personal loyalty.’”
“The next day, Trump began working personally to avert any criminal investigation of Flynn’s conduct,” Gleeson concluded.
Citing “the Judiciary’s independent interest in the integrity of its own proceedings and the need to protect the public from gross abuses of prosecutorial discretion,” Gleeson argued that Sullivan had the authority to reject the motion to dismiss, and should do so.
The reason judges are able to reject prosecutorial attempts to drop charges – rule 48(a) in the rules of criminal procedure – was to establish “a judicial check on the corrupt, politically motivated dismissal of criminal charges; this was the fundamental reason given for limiting prosecutorial power to dismiss cases,” Gleeson wrote.
Gleeson argued that the judiciary itself had an interest in protecting “the untainted administration of justice” – an interest that was imperiled, Gleeson argued, by the Justice Department’s motion to drop the charges.
“These interests are imperiled if the Executive Branch seeks the dismissal of criminal
charges for corrupt, politically motivated reasons that undermine confidence in the integrity of judicial process,” he wrote.
For cases, however, where nobody opposed a motion to dismiss, Gleeson maintained that “corrupt, irregular conduct” on the part of the government is enough to warrant the court rejecting the motion. Beyond that, the former judge argued, rescinding the charges post-plea could implicate Sullivan’s own “sentencing authority.”
“The reasons offered by the Government are so irregular, and so obviously pretextual, that they are deficient,” Gleeson wrote. “Moreover, the facts surrounding the filing of the Government’s motion constitute clear evidence of gross prosecutorial abuse.”
Gleeson added that the reasons for dismissal “are directly and decisively disproven by the Government’s own briefs filed just months ago in this very proceeding,” before homing in on the damage done to Sullivan’s authority in the case: “They are also plainly inconsistent with prior orders of this Court, which constitute law of the case.”
Gleeson described the underlying case against Flynn as “about as straightforward a case of materiality as a prosecutor, court, or jury will ever see” in terms of the false statements Flynn made.
Throughout his argument for why Flynn committed a crime and should therefore be sentenced, Gleeson emphasized the point that all of the arguments he made in favor of Flynn’s guilt were, just months earlier, those made by the same government Gleeson currently opposes.
“Not only did the Government all make these arguments, but the Court has already agreed with them,” Gleeson noted at one point.
He went on to address the DOJ’s argument – buttressed by years of conspiracy mongering in the right-wing media – that the FBI was about to close the Flynn investigation, but for an administrative delay that allowed the Obama administration to keep the case going.
“Suppose any other defendant in a false statement case demanded disclosure of whether the agency at one point thought about closing the investigation,” Gleeson wrote. “Even if the defendant had not already pled guilty before one judge and reaffirmed that allocution under oath before another, the Government would scoff at those demands, and this Court would summarily deny them.”
Gleeson also took swipes at Flynn while arguing against the DOJ’s notion that Flynn was entrapped, noting “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 argued that the Justice Department had committed obvious prosecutorial misconduct in moving to drop the case to benefit a “confidant of the President’s,” warranting denial of the motion.
“President Trump today has the unreviewable authority to issue a pardon, thus ensuring that Flynn is no longer prosecuted and never punished for his crimes because he is a friend and political ally,” Gleeson wrote. “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.”
Finally, Gleeson argued that Flynn met all the standards for contempt of court – but that Sullivan should not initiate a separate prosecution for it.
Rather, the former judge held, Sullivan should “consider the contemptuous conduct in sentencing on the offense of conviction.”
Gleeson argued that Flynn’s decision to back out of his plea agreement had “not only derailed the proceedings—forcing the Court to suspend the briefing schedule and cancel the sentencing—but also reflected brazen gamesmanship challenging the integrity of the judicial system.”
Beyond that, Gleeson maintained that Sullivan had the ability to appoint a “private prosecutor” because “the Government has already indicated that it would decline to prosecute.”
But, Gleeson argued, Sullivan should not order Flynn to explain why he didn’t commit perjury, in part because “the best response to Flynn’s perjury is not to respond in kind.”
“Ordering a defendant to show cause why he should not be held in contempt based on a perjurious effort to withdraw a guilty plea is not what judges typically do,” Gleeson wrote, adding that Sullivan should attempt to “return regularity” to the judicial process.
Flynn and the Justice Department are trying to get Flynn’s case dismissed. Judge Sullivan has initially balked, given the extraordinary circumstances of the matter.
Read the friend-of-the-court filing submitted Wednesday by John Gleeson, who was appointed by Sullivan as a friend of the court, below: