Former national security adviser Michael Flynn exits a vehicle as he arrives for his sentencing hearing at U.S. District Court in Washington, December 18, 2018.
Jonathan Ernst | Reuters
A former federal judge said in a court filing Friday that the Justice Department’s unusual effort to dismiss its prosecution of former national security advisor Michael Flynn seems like a “corrupt and politically motivated favor” done after pressure by President Donald Trump.
Former judge John Gleeson’s harsh words came as he urged the judge in Flynn’s case, Emmet Sullivan, to reject the Department of Justice’s request to drop its prosecution and then sentence Flynn for his crime of lying to the FBI.
Gleeson, who is now an attorney in private practice, was appointed by Sullivan earlier this year to argue against the DOJ’s effort, which is pending in Washington federal court.
In his filing, Gleeson wrote that the Justice Department, in its own court records seeking a dismissal, “makes virtually no effort to deny or rebut the powerful evidence that its … motion improperly seeks to place this Court’s imprimatur on a corrupt, politically motivated favor for the President’s friend and ally.”
Gleeson wrote that the Justice Department had made “patently pretextual attempts to justify what is plainly a corrupt political errand for the President.”
Flynn, a retired Army lieutenant general who briefly served as Trump’s national security advisor, pleaded guilty nearly three years ago to lying to FBI agents about his discussions with a Russian diplomat in the weeks leading up to Trump’s inauguration.
He has yet to be sentenced in the case. For more than a year, he has tried to undo his conviction by arguing misconduct by prosecutors and the FBI.
The Justice Department until several months ago had fought against Flynn’s effort. But then it abruptly asked that the case be dismissed.
Then-interim U.S. attorney for the District of Columbia, Timothy Shea, argued in the dismissal request that the FBI’s interview of Flynn was not justified by a counterintelligence investigation and that his lies about what he said to Russian ambassador Sergey Kislyak were not “material” to that probe.
Such a dismissal request is highly unusual in a case for which prosecutors have obtained a conviction and even gotten the defendant to cooperate with ongoing investigations, as Flynn did with his assistance to then-special counsel Robert Mueller.
The dismissal request came after Trump repeatedly criticized the prosecution of Flynn, even though he had fired Flynn for lying to Vice President Mike Pence about what he had discussed with Kislyak. Pence earlier this year said he was inclined to believe Flynn had merely made a mistake.
Gleeson cited that criticism as he blasted the Justice Department for failing to mention in its own court filings the effect of Trump’s comments.
“The Government does not disagree with any of this — presumably because it cannot. Indeed, the Government nowhere even mentions the President’s personal lobbying, let alone his virulent attacks on those previously involved in this prosecution,” Gleeson said.
“Based entirely on evidence already in the public view, the only coherent explanation for the Government’s exceedingly irregular motion — as well as its demonstrable pretexts — is that the Justice Department has yielded to a pressure campaign led by the President for his political associate.”
Gleeson also wrote: “The Government has now had two chances to explain why its sudden doubt that Flynn lied is worthy of credence.”
“It has failed. It is not entitled to leave of court on this basis,” he added.
Gleeson said that the record in Flynn’s case is part of a pattern of “troubling indications of improper interference with criminal cases involving the President’s personal and political associates.”
He cited the Justice Department’s sharp downgrading of a sentencing recommendation for Trump’s former campaign member Roger Stone, who was convicted of lying to Congress. While trial prosecutors had recommended a stiff prison sentence for Stone, their superiors at the Justice Department overruled them, in an extraordinary court filing, that called for a lighter term.
Trump had condemned the prosecution of Stone, as he has done with Flynn’s case.
Stone ended up receiving a 40-month prison sentence. But just four days before his scheduled surrender to prison, Trump commuted that sentence.
Flynn’s lawyers and the Justice Department earlier this year asked a federal appeals court to force Sullivan to dismiss the case after he failed to quickly grant the request and after he appointed Gleeson to make arguments opposing the bid.
An appeals court panel ruled in Flynn’s favor and directed that the case be tossed.
But Sullivan appealed that decision. And the full appeals court soon after reversed the panel’s ruling, saying that Sullivan should be first allowed to rule on the dismissal request one way or the other. Flynn can appeal Sullivan’s ruling if the judge refuses to toss the case.
Sullivan is expected to hear arguments on the dismissal request later this month.
A lawyer for Flynn and a spokeswoman for the Justice Department did not immediately respond Friday to requests for comment about Gleeson’s court filing.