A former judge selected to advise on a path forward in the criminal case against Michael Flynn is accusing the Justice Department of exercising a “gross abuse of prosecutorial power” to protect an ally of President Donald Trump, distorting known facts and legal principles to shield Flynn from a jail sentence.
The former federal judge, John Gleeson, skewered Attorney General Bill Barr’s handling of the case, describing it as an “irregular” effort that courts would “scoff” at were the subject anyone other than an ally of Trump. The 82-page excoriation featured a painstaking reconstruction of the Flynn case and accused DOJ of contradicting its own arguments and precedents to justify dropping the case against Flynn.
“Even recognizing that the Government is entitled to deference in assessing the strength of its case, these claims are not credible,” Gleeson wrote. “Indeed, they are preposterous.”
Gleeson is recommending that the judge overseeing the case, U.S. District Court Judge Emmet Sullivan, instead proceed to sentence the former Trump national security adviser on the false-statement charge he admitted to two-and-a-half years ago — and later rescinded.
The episode is part of one of the highest-profile remaining legal matters facing Trump allies. It could drive up pressure on the president to pardon Flynn or commute his sentence in the heat of his reelection campaign.
"The facts surrounding the filing of the Government's motion constitute clear evidence of gross prosecutorial abuse. They reveal 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," Gleeson wrote in a filing Wednesday with Sullivan, who formally tapped Gleeson to weigh in as a friend of the court.
However, Gleeson urged Sullivan not to pursue contempt proceedings against Flynn for seemingly contradictory statements made about his actions. Though there is “ample” evidence to support such a move, Gleeson recommended factoring it into Flynn’s sentencing for his initial guilty plea rather than initiating new action related to the about-face.
The brief is a significant new flashpoint in the long-running legal saga surrounding Flynn, Trump’s national security adviser in the first few weeks of his presidency. Trump fired Flynn in February 2017, citing his dishonesty with the FBI and with Vice President Mike Pence over his contacts with Russia’s ambassador to the United States in the weeks before Trump took office.
Flynn, at the time, urged Russia’s envoy to limit its response to outgoing Obama administration measures to punish Russia for interfering in the 2016 election. The FBI interviewed Flynn about those calls days after Trump took office, part of a counterintelligence investigation into Trump campaign contacts with Russia.
Gleeson spent much of brief recounting the events that precipitated Flynn’s December 2017 guilty plea, abrupt reversal and DOJ’s decision to drop the case. He noted that Trump tweeted about the case more than 100 times in the interim.
“Everything about this is irregular,” Gleeson wrote.
“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 continued. “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, a Clinton appointee who served on the Manhattan federal court before stepping down in 2016, was appointed last month by Sullivan to help him tackle the highly unusual Justice Department request to drop the criminal case against Flynn despite the guilty plea he tendered back in 2017 as part of a cooperation deal with special counsel Robert Mueller.
Barr ordered the reversal by the government following a review conducted at his request by a U.S. Attorney in Missouri, Jeffrey Jensen. Jensen’s review concluded that the FBI had no legitimate basis to interview Flynn at the January 24, 2017 session where he allegedly lied about his dealings with the Russian ambassador.
A Justice Department spokeswoman offered no specific reaction to Gleeson’s skewering of the department, instead referring to the government’s legal briefs already on file.
In a mid-May interview with CBS News, Barr denied carrying water for Trump and said he viewed the FBI's treatment of Flynn as improper, justifying his decision to seek dismissal of the charges. "There's only one standard of justice. And I believe that this case, that justice in this case requires dismissing the charges against General Flynn."
The recommendation from Gleeson came just two days before a potentially pivotal hearing before a federal appeals court panel weighing a request from Flynn’s attorneys to order Sullivan to drop the pending false-statement case. Flynn’s lawyers have accused the FBI and federal prosecutors of coercing Flynn’s guilty plea through “egregious misconduct” and have also accused Sullivan of bias, asking the D.C. Circuit to reassign the case to another judge for any further proceedings.
If the D.C. Circuit sides with Flynn, Gleeson’s filing Wednesday could be moot. One of the issues the appeals judges are considering is whether it was proper for Sullivan to invite the retired judge to weigh in.
If Flynn is sentenced on the false-statement charge, he faces a maximum possible term of five years in prison. However, under the plea deal prosecutors agreed that in accordance with non-binding federal sentencing guidelines any term up to six months was reasonable. In a revised sentencing pleading that drew attention, prosecutors arguably softened their line further by saying they would not object to probation despite concerns that Flynn’s cooperation was not as extensive as promised.
Sullivan had previously indicated he was inclined to sentence Flynn to a jail term, suggesting at a 2018 sentencing hearing that the former national security adviser had arguably “sold your country out.” If he follows Gleeson’s recommendation, Sullivan could seek a jail sentence that exceeds the initial recommendation of prosecutors.
Barr’s move to abandon the criminal case against Flynn ignited a furor on Capitol Hill, where Democrats have accused him of rigging the process in favor of Trump’s allies. It also led to an outcry from many in the legal community, including more than 2,000 former prosecutors and Justice Department employees who signed a letter accusing the attorney general of politicizing the process.
Various individuals and groups have filed a flurry of amicus briefs with Sullivan or the appeals court, offering a range of perspectives on the case.
In one notable brief filed Tuesday night, a traditionally liberal group urged Sullivan not to undertake perjury-related contempt proceedings against Flynn. The National Association of Criminal Defense Lawyers said innocent defendants face intense pressure to plead guilty in the federal system and they should not be exposed to contempt or perjury if they try to withdraw their pleas.
“Because defendants now must choose between admitting the government’s allegations or risking a much higher sentence if a jury returns a guilty verdict, there is no justification for presuming that guilty pleas are truthful,” the NACDL brief argued.
“If, as the Department of Justice now concedes, [Flynn] succumbed to the pressure to plead guilty even though he was legally innocent, he is hardly unique. His decision to do that in no way obstructed justice or interfered with the judicial function. It is not, by any stretch, a contemptuous act,” the group added.
The brief, which seemed to remain neutral on the question of whether Flynn was getting special treatment from DOJ, did not address specific answers Flynn gave under oath to questions asked in court by Sullivan and another judge previously assigned to the case. In a written declaration submitted under penalty of perjury in January, Flynn retreated from or reversed many of those admissions.
Parts of the brief from the defense lawyers’ group seemed intended to serve as a reminder to Gleeson that he has publicly criticized the federal justice system’s reliance on negotiated plea deals, which render trials a rarity in many courts.
Flynn’s allies have argued that Gleeson was a poor choice to advise the court because just days before receiving the friend-of-the-court appointment he co-authored an op-ed in the Washington Post decrying Barr decision to seek to jettison the case.
Flynn's lead lawyer, Sidney Powell, downplayed the new filing on Wednesday. In an email to POLITICO, she dismissed Gleeson's submission as "completely predictable."
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