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Flynn Dismissal Slammed as Corrupt DOJ Bid to Aid Trump Ally (1)

June 10, 2020, 9:43 PM

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 in Washington 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 wrote. “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. He asked a federal appeals court in Washington to order Sullivan to dismiss the case.

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 for perjury, since he attempted 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 on Gleeson’s filing and said she’d respond with a brief of her own later Wednesday. She had accused the judge of “deep-seated antagonism” toward her client.

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.

But 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.”

Gleeson’s views were never in doubt. Before he was brought onto the case, he co-authored an editorial in the Washington Post questioning whether the Justice Department acted honestly in seeking the dismissal.

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.

Appeals Filings

On Wednesday, Sullivan filed a brief in the appeals case, again defending his right to come to his own conclusion on the dismissal motion. The judge urged the appeals court not to grant Flynn’s request in order to preserve “the basic order of our judicial system” in which decisions are issued before an appeal is made.

“After spending more than two years convincing the district court of Mr. Flynn’s crimes and enlisting its Article III power to convict him, it is not asking too much for the government and Mr. Flynn to participate in that process before the district court rules,” Sullivan said.

In a separate filing to the appeals court Wednesday, the Justice Department said its reversal represents the “authoritative position of the executive” and must be accepted by the court.

Powell told the appeals court in a filing Wednesday that her client walked back his guilty plea after accusing his earlier legal team of conflicts of interest. She also said dismissal of the case is warranted because of alleged FBI misconduct.

Sullivan “has exceeded his power now precisely because General Flynn proclaimed his innocence and pursued a vigorous defense of his constitutional rights as soon as he retained unconflicted counsel,” Powell said.

Oral arguments at the appeals court are scheduled for Friday.

(Updates to add judge’s brief in appeals case.)

To contact the reporter on this story:
Erik Larson in New York at elarson4@bloomberg.net

To contact the editors responsible for this story:
David Glovin at dglovin@bloomberg.net

Steve Stroth, Joe Schneider

© 2020 Bloomberg L.P. All rights reserved. Used with permission.

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