Retired Judge Assigned to Oppose Dismissal of Charges Against Flynn

Michael Flynn, President Donald Trump’s former national security adviser, leaves the federal court in Washington in September 2019. (AP Photo/Manuel Balce Ceneta)

WASHINGTON (CN) — In the latest twist in the prosecution of President Donald Trump’s former national security adviser Michael Flynn, the federal judge overseeing the case has teed up a retired judge to argue against the abrupt move by the Justice Department to drop the prosecution.

U.S. District Judge Emmet Sullivan on Wednesday appointed John Gleeson, formerly a U.S. district judge for the Eastern District of New York and chief of the Criminal Division in the U.S. Attorney’s Office for the district, to present arguments in opposition to the government’s motion to dismiss.

He also ordered the retired judge to address whether Flynn should be held in criminal contempt for lying about false statements he previously admitted to in open court.

Gleeson had called on the Washington judge earlier this week to take a closer look at the shocking reversal by the Justice Department after three years of prosecuting the former White House adviser for lying to the FBI.

Flynn had twice pleaded guilty, before launching into allegations of “egregious government misconduct” and motioning to withdraw his plea earlier this year.

‘Flynn’s guilt has already been adjudicated. So if the court finds dismissal would result in a miscarriage of justice, it can deny the motion, refuse to permit withdrawal of the guilty plea and proceed to sentencing,” Gleeson wrote in a Washington Post op-ed co-authored with two former federal prosecutors.

Last week, the Justice Department told Sullivan that the government no longer found the defendant’s false statements to investigators in a 2017 interview about his conversations with the Russian ambassador to be material.

In what would be a forceful wielding of judicial authority, Sullivan can reject the government’s motion to dismiss the prosecution against Flynn.

“Based on a careful assessment of the balance of proof, the equities, and the federal interest served by continued prosecution of false statements that were not ‘material’ to any bona fide investigation, the government has concluded that the evidence is insufficient to prove its case beyond a reasonable doubt,” the motion states.

In a wave of backlash, thousands of former government attorneys said that “purported justification” does not hold up to scrutiny.

Gleeson was among those who raised the alarm, calling the government’s move to drop charges brought by former special counsel Robert Mueller “virtually unheard of.” The record, he wrote, “reeks of improper political influence.”

The retired judge highlighted that the career prosecutor on the case, Brandon Van Grack, abruptly withdrew from the prosecution just hours before the department filed the motion to dismiss, signed by interim U.S. attorney Timothy Shea, a former aide to Attorney General William Barr.

Barr had elevated Shea to serve as the U.S. Attorney for the District of Columbia back in January.

Over 2,000 former Justice Department officials have called on Barr to resign, claiming the latest move in Flynn’s case mirrors evidence of political interference in the prosecution against longtime Trump ally Roger Stone.

“Make no mistake: The department’s action is extraordinarily rare, if not unprecedented. If any of us, or anyone reading this statement who is not a friend of the president, were to lie to federal investigators in the course of a properly predicated counterintelligence investigation, and admit we did so under oath, we would be prosecuted for it,” their letter states.

Barr has publicly denied that he had acted on behalf of the president, who said just days before the Justice Department changed course on the prosecution that he believed Flynn would be “totally exonerated.”

The president responded to the government motion to dismiss by calling the defendant an “innocent man” and accusing career prosecutors of treason. In 2017, Flynn was fired from the White House for lying to Vice President Mike Pence about his discussions with then-Russian ambassador to the U.S. Sergey Kislyak about Obama-era sanctions for election interference.

In a Tuesday order setting up further movement on the case, Sullivan opened the door for third parties to weigh in by filing friend of the court briefs.

Flynn’s attorneys quickly pushed back against the order, arguing the briefs should be rejected “for the same reason as all prior attempts by third parties have been,” noting the court had denied other attempts by third parties to intervene in the case on 24 specific occasions.

“Moreover, this travesty of justice has already consumed three or more years of an innocent man’s life — and that of his entire family,” they argued in a court filing Tuesday. “No further delay should be tolerated or any further expense caused to him and his defense.”

The attorneys said Sullivan’s order came after a group referring to itself as “Watergate Prosecutors” submitted a notice of intent to file arguments in the case, a motion the judge has since denied.

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