A former judge appointed to argue against the Department of Justice's (DOJ) extraordinary decision to drop charges against Michael Flynn urged a federal judge not to let the Trump administration withdraw its case and accused the former national security adviser of perjury.
In an 82-page filing submitted Wednesday, John Gleeson, the former judge acting as an outside counsel, accused the DOJ of "gross abuse of prosecutorial power" in its handling of the case against President TrumpDonald TrumpHillicon Valley — State Dept. employees targets of spyware Ohio Republican Party meeting ends abruptly over anti-DeWine protesters Jan. 6 panel faces new test as first witness pleads the Fifth MORE's former adviser.
"The Government’s ostensible grounds for seeking dismissal are conclusively disproven by its own briefs filed earlier in this very proceeding," Gleeson wrote. "They 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."
"The Government has engaged in highly irregular conduct to benefit a political ally of the President," he added.
He also accused Flynn of committing perjury in withdrawing from an earlier guilty plea, but recommended the court not to open criminal charges.
Judge Emmet G. Sullivan, the Clinton-appointed judge overseeing the Flynn case, responded to the DOJ's surprise motion to withdraw its case last month by tapping Gleeson to present a counterargument.
Flynn's lawyers have pushed back on the appointment, asking the D.C. Circuit Court of Appeals to intervene by ordering Sullivan to grant the DOJ's dismissal motion outright, arguing that Gleeson's appointment as third-party counsel is unconstitutional because it takes prosecutorial power away from the executive branch.
But Gleeson argued Wednesday that Sullivan has the authority to reject the DOJ's effort to drop the charges and that there's plenty of evidence that would support the move.
"The reasons offered by the Government are so irregular, and so obviously pretextual, that they are deficient," he wrote. "Moreover, 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."
Flynn pleaded guilty in 2017 to lying to the FBI about his contacts with a Russian diplomat in late 2016 after Trump won the election.
He admitted in sworn statements to the court that he had told federal investigators that he did not discuss U.S. sanctions on the Kremlin with then-Russian Ambassador to the U.S. Sergey Kislyak.
In fact, FBI transcripts of phone conversations between the two showed that Flynn had urged Kislyak during that period not to impose countersanctions in response to the Obama administration's penalties for meddling in the 2016 election.
Trump fired Flynn over the controversy just three weeks into his tenure as national security adviser.
The former three-star Army general agreed to plead guilty to a charge of lying to the FBI and then cooperate with former special counsel Robert MuellerRobert (Bob) MuellerAn unquestioning press promotes Rep. Adam Schiff's book based on Russia fiction Senate Democrats urge Garland not to fight court order to release Trump obstruction memo Why a special counsel is guaranteed if Biden chooses Yates, Cuomo or Jones as AG MORE's investigation into Russian meddling. But earlier this year, as Flynn was about to be sentenced, he withdrew from the plea agreement and proclaimed his innocence.
Gleeson said Wednesday that Flynn committed perjury in reversing his earlier statements before the court. But instead of charging him with contempt, Gleeson said Sullivan should take those allegations into consideration when sentencing Flynn on the original charge of lying to the FBI.
Last month, the DOJ stunned observers by moving to withdraw the case, raising concerns that the administration was intervening on behalf of one of the president's allies. The motion to drop the charges was filed without the career prosecutor leading the case; the prosecutor withdrew from the proceeding just before the motion was filed.
The DOJ argued in the motion that it no longer felt it could prove the case against Flynn and raised concerns about the FBI investigation that led to Flynn's interview with investigators. Trump and his allies have repeatedly criticized that investigation, which was focused on his 2016 campaign and Russian interference, as a politically motivated "witch hunt."
Trump has also weighed in on the case, saying he was considering pardoning Flynn. Gleeson argued Wednesday that the president's statements support his view that the DOJ's reversal in this case amounts to an abuse of power.
"He has made clear his view that Flynn should not be prosecuted or punished for his crimes," Gleeson wrote. "And he has publicly repudiated settled, foundational norms of prosecutorial independence. Everything about this is irregular."
The new wrinkles in the case have cast uncertainty on what had once been a relatively straightforward plea agreement, and it's still unclear how Sullivan and the D.C. Circuit will deal with the DOJ's reversal. On Friday, the appeals court will hear oral arguments on Flynn's effort to force Sullivan to drop the charges. And next month, Sullivan will hear oral arguments on whether to grant the DOJ's motion to withdraw its case.