Former federal judge appointed to review the Michael Flynn case determines the DOJ 'engaged in highly irregular conduct to benefit a political ally of the President'

AP Photo/Susan WalshMichael Flynn.
  • A veteran former judge and prosecutor appointed to review the Justice Department’s motion to dismiss its case against Michael Flynn determined this week that the department “engaged in highly irregular conduct to benefit a political ally of the President.”
  • The former judge, John Gleeson, added that there was “clear evidence of a gross abuse of prosecutorial power” in the motion to dismiss, and that the court should deny the DOJ’s request.
  • Flynn pleaded guilty in December 2017 to lying to the FBI as part of the Russia probe but later tried to withdraw the guilty plea.
  • The DOJ abruptly moved to drop its case against Flynn last month, alarming national security veterans who said it was the latest example of Attorney General William Barr using the department as a shield for President Trump and a sword against Trump’s perceived enemies.
  • Visit Business Insider’s homepage for more stories.

A veteran former prosecutor and federal judge appointed to review the Justice Department’s motion to dismiss its case against former national security adviser Michael Flynn determined on Wednesday that the case should not be dismissed.

US District Judge Emmet Sullivan, who is overseeing the Flynn case, appointed the former prosecutor, John Gleeson, to argue against the DOJ’s motion to dismiss the case.

In his brief Wednesday, Gleeson determined that Flynn perjured himself by admitting under oath that he lied to the FBI about his communications with the former Russian ambassador and later seeking to withdraw the guilty plea.

However, Gleeson said, Flynn should not face a contempt hearing and should instead be penalised as part of his formal sentencing for the guilty plea.

“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,” Gleeson wrote.

The former judge listed two primary reasons for why the court should deny the DOJ’s motion to drop its case against Flynn:

  • The department’s claim that there isn’t enough evidence to prove Flynn made materially false statements “taxes the credulity of the credulous” and is “conclusively disproven by its own briefs filed earlier in this very proceeding.”

    • Gleeson added that the government’s grounds for dismissing the case also “contradict and ignore this Court’s prior orders, which constitute law of the case. They are riddled with inexplicable and elementary errors of law and fact. And they depart from positions that the Government has taken in other cases.”
  • There is also “clear evidence of a gross abuse of prosecutorial power” in the motion to dismiss, Gleeson wrote. Rule 48(a) of the federal rules of criminal procedure is meant to protect against “dubious dismissals of criminal cases that would benefit powerful and well-connected defendants.” However, that’s exactly what’s happened here, Gleeson added. Specifically, “the Government has engaged in highly irregular conduct to benefit a political ally of the President.”

Gleeson’s brief comes ahead of a July 16 hearing in which Sullivan will weigh arguments on the merits of the DOJ’s motion. But a three-judge panel on the Washington, DC, circuit court of appeals is scheduled to hear arguments on Friday on Flynn’s request to have the case immediately dismissed. Two judges on the panel are Republican appointees.

Flynn pleaded guilty in December 2017 to lying to the FBI about his conversations with then-Russian Ambassador Sergey Kislyak regarding US sanctions against Russia.

Flynn initially cooperated with prosecutors but later shifted course and hired Sidney Powell, a defence attorney who took a more combative stance, urging the court to dismiss the Justice Department’s case against Flynn and accusing the department of prosecutorial misconduct.

Last month, the DOJ abruptly moved to drop its case against Flynn after Attorney General William Barr tapped an outside prosecutor to reexamine the case.

Trump and his allies rejoiced over the decision, saying it confirmed their claims that the FBI acted out of political bias when it investigated the Trump campaign for conspiring with the Russian government in 2016.

Department veterans and national security officials, meanwhile, excoriated the decision as being part of Barr’s ongoing effort to use the department as a shield for Trump and a sword against his perceived enemies.

They pointed, specifically, to the fact that Flynn had already pleaded guilty and acknowledged his wrongdoing several times, weakening the department’s claim last week that it could not legally bring a case against the former national security adviser.

Brandon Van Grack, one of the prosecutors from the former special counsel Robert Mueller’s team who worked on the Flynn case, also withdrew as counsel for the government shortly before the DOJ filed its motion to drop the case.

Van Grack’s sudden withdrawal was the biggest red flag to DOJ veterans, who told Business Insider it was reminiscent of when the prosecutors working on the US’s case against Roger Stone, another Trump ally, withdrew en masse after senior department leadership publicly reversed their sentencing recommendation in the case.

The controversy kicked up another when Mary McCord, the former acting assistant attorney general for national security who was directly involved in the Flynn case, wrote that the DOJ twisted her testimony to justify dropping the case.

Jonathan Kravis, one of the prosecutors from the Stone case who left the department altogether after withdrawing, also wrote in a Washington Post op-ed that the DOJ’s move to dismiss Flynn’s case was a “disastrous mistake.”

Kravis accused the DOJ of putting “political patronage ahead of its commitment to the rule of law” and moving to dismiss the case even though Flynn pleaded guilty and the court ruled that the plea was valid.

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