WASHINGTON (CN) — The retired judge appointed by the court to oppose the government in its bid to dismiss the prosecution of former national security adviser Michael Flynn filed his argument Wednesday, staunchly defying what he called “highly irregular conduct to benefit a political ally of the president.”
Before joining Debevoise & Plimpton in 2016, John Gleeson spent decades as a prosecutor and presided over his own courtroom in the Eastern District of New York for 22 years. He argued Wednesday that the government’s “ostensible grounds for seeking dismissal” are disproven by its own prior briefs in the long-running prosecution.
“They are riddled with inexplicable and elementary errors of law and fact,” the 82-page brief states. “And they depart from positions that the government has taken in other cases.”
Flynn’s friendship with Trump and their political alliance is not reason enough to dismiss the prosecution, the court-appointed expert argued.
“Only by acting as a rubber stamp could the court presume that all of this is regular and that the government’s reasons here are anything but pretextual,” Gleeson wrote.
While he also said Flynn deserves punishment for perjury in the case that has spent years winding through federal court, Gleeson urged U.S. District Judge Emmet Sullivan not to hold the defendant in criminal contempt. Flynn had twice pleaded guilty to lying to the FBI, only to withdraw the plea this year and accuse the government of prosecutorial misconduct.
“Rather, it should take Flynn’s perjury into account in sentencing him on the offense to which he has already admitted guilt,” Gleeson wrote. “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.”
Sullivan appointed the retired judge to file the brief as a friend of the court and set a hearing for July after opting last month not to immediately grant the government’s motion to drop Flynn’s prosecution.
Since then, Flynn has maneuvered to force Sullivan’s hand, petitioning the D.C. Circuit for a writ of mandamus. A three-judge appellate panel will hear oral arguments on that matter Friday, with the high-profile trial lawyer Beth Wilkinson representing Sullivan.
Gleeson, on the other hand, argues that gross abuse of prosecutorial power is apparent and that Flynn’s guilty plea should stand.
“The facts of this case overcome the presumption of regularity,” he wrote. “The court should therefore deny the government’s motion to dismiss, adjudicate any remaining motions, and then sentence the defendant.”
The amicus brief, along with Sullivan’s own defense arguments filed last week, made for a major one-two punch to President Donald Trump’s Justice Department as it works to exonerate Flynn.
While Attorney General William Barr has denied that he acted on behalf of Trump to drop the prosecution, Democrats are investigating whether the nation’s top law enforcement officer has shirked his responsibilities and taken on the mantle of being the president’s political fixer.
Wilkinson meanwhile has urged the appeals court not to “short-circuit” the judicial process. The D.C. Circuit, she wrote on June 1, should allow Sullivan to decide what she calls an “unprecedented” motion to dismiss signed not by career prosecutors but by the then-acting U.S. attorney for the District of Columbia.
“Because our judicial system is premised on the notion that adversarial presentation of the issues leads to better decisions, and because no decisions have yet been made, the court should holster the ‘potent weapon’ of mandamus,” the attorney wrote in the brief for Sullivan.
In the petition for mandamus, Flynn’s attorney Sidney Powell pointed to new records unearthed by Eastern District of Missouri U.S. Attorney Jeff Jensen, whom Barr tapped to investigate the prosecution. Powell says the records reveal Obama-era officials cornered Flynn into a perjury trap.
“This is an umpire who has decided to steal public attention from the players and focus it on himself,” the mandamus petition states. “He wants to pitch, bat, run bases, and play shortstop. In truth, he is way out in left field.”
Dozens of would-be amici have filed briefs with the appeals court. Many of those backing Flynn accuse Sullivan of “abandoning neutrality in the case.”
Senate Majority Leader Mitch McConnell, former independent counsel Ken Starr and a coalition of red states were among those calling into question the judge’s impartiality in the lead-up to Friday’s arguments in Washington.
But other amici, including the New York Bar Association and 16 former Watergate prosecutors, support Sullivan’s authority in the case.
“Here, the substance of the government’s motion departs so dramatically from settled legal principles and traditional prosecutorial norms as to suggest that it was tailor-made for this particular politically connected defendant — and, as such, constitutes ‘a restricted railway ticket, good for this day and train only,’” the Watergate prosecutors argued, quoting a dissent from Supreme Court Justice Owen Roberts in the 1944 case Smith v. Allwright over racially discriminatory voting rules.
Sixty-seven high-ranking national security officials who served under Republican and Democrat presidents also filed a brief, just hours before Gleeson, in support of Sullivan.
They wrote that the FBI was right to investigate after Flynn made calls to the then-Russian ambassador to the U.S. in the weeks leading up President Donald Trump’s inauguration.
“Further, Mr. Flynn’s false statements were plainly material to the FBI’s decision-making (including about what additional investigative steps to take, if any) and to the national security and intelligence interests of the United States,” they wrote, cutting at the arguments underlying the government’s motion to dismiss. (Parentheses in original.)
Thousands of former Justice Department officials have called for Barr to resign over his interference in both the Flynn prosecution and that of another Trump associate, conservative provocateur Roger Stone, who was convicted on seven criminal counts last year.
After the attorney general rebuffed two attempts by the House to have him speak on the accusations mounting against him, Democrats plan instead to hear testimony from Justice Department whistleblowers.
House Judiciary Chair Jerry Nadler, D-N.Y., has accused Barr of corrupting the Justice Department. Submitting an amicus brief in the Flynn case Wednesday, Nadler and fellow committee Democrats accused the attorney general of having stonewalled congressional oversight.
“Barr now seeks to stonewall this court too, arguing that this court lacks discretion to do anything except lend its imprimatur to his decision to seek dismissal,” the brief states.
Represented by the firm Gupta Wessler, the Democrats urged Sullivan to consider the Justice Department’s motion under careful scrutiny, given that Barr has evaded their attempts to safeguard the criminal justice system from political influence and “stymied these oversight efforts at every turn.”
Supporting Sullivan’s scheduling of a July evidentiary hearing, they quoted the Supreme Court decision United States v. Nixon: “The very integrity of the judicial system and public conﬁdence in the system depend on full disclosure of all the facts.”
There may be a legitimate explanation for the government’s reversal in the case, the lawmakers conceded.
“But the facts currently available to the public, the committee, and this court evoke corruption,” the brief states. “Without an evidentiary hearing, this court — and the American people — can only speculate about the true reasons underlying the department’s decision.”
Before Sullivan once again takes up Flynn’s fate in his Washington courtroom, however, the appeals court must first consider the defendant’s petition to order the case dismissed.
Flynn’s appeal is set to be heard by the Trump-appointed U.S. Circuit Judge Neomi Rao, as well as U.S. Circuit Judge Robert Wilkins, whom Obama appointed, and U.S. Circuit Judge Karen Henderson, a George H. W. Bush appointee who routinely drills Trump’s Justice Department on their far-out legal claims.