The U.S. Justice Department’s request to drop the criminal case against former national security adviser
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
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
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.”
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
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.)
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