A former federal judge on Wednesday blasted the U.S. Justice Department for what he called “a gross abuse of prosecutorial power” in seeking to drop its criminal case against Michael Flynn, President Donald Trump’s first national security advisor.
“The Government has engaged in highly irregular conduct to benefit a political ally of the President,” the ex-judge, John Gleeson, wrote in a scathing legal filing.
Gleeson also wrote that Flynn “has indeed committed perjury” in his statements to Judge Emmet Sullivan during proceedings in the case, “for which he deserves punishment.”
But Gleeson added that while Sullivan has the power to hold Flynn in criminal contempt for perjuring himself during a plea hearing and another hearing, Sullivan should “not exercise that authority.”
“Rather, [Sullivan] should take Flynn’s perjury into account in sentencing him on the offense to which he has already admitted guilt,” Gleeson wrote in a filing in U.S. District Court in Washington, D.C.
Flynn in that same court has twice admitted under oath to Sullivan that he lied to FBI agents about his discussions with Russia’s ambassador to the United States in the weeks leading up to Trump’s inauguration. He has yet to be sentenced.
Gleeson was appointed by Sullivan to present counterarguments after the Justice Department, in a highly unusual move, asked that the case be dismissed.
Sullivan also asked Gleeson to address whether Flynn should be punished for committing perjury before the court by lying to Sullivan in his guilty pleas.
Flynn now says he is not guilty of that crime, raising the question of whether he lied under oath when he pleaded guilty.
Flynn’s lawyers have asked a federal appeals court to remove Sullivan from the case because he has not promptly granted to dismissal request, and because he asked Gleeson to file legal briefs on the question of Flynn’s possible perjury.
The appeals court has yet to rule.
Gleeson, a lawyer in private practice who previously served on the federal bench in New York City, in his court filing Wednesday hammered on the Justice Department for seeking to drop the prosecution for what Gleeson deemed baseless grounds.
In a court filing last month seeking the dismissal, then-interim U.S. attorney for the District of Columbia Timothy Shea, a former advisor to Attorney General William Barr, argued that the FBI’s interview of Flynn was not justified by a counterintelligence investigation, and that his lies about what he said to a Russian diplomat were not “material” to that probe.
Gleeson dismissed those arguments, saying that the excuses given by Justice Department for dropping the case which it had pursued for more than three years “are so irregular, and so obviously pretextual, that they are deficient.”
“Moreover, the facts surrounding the filing of the Government’s motion constitute clear evidence of gross prosecutorial abuse,” wrote Gleeson, who himself is a former federal prosecutor who had worked for the Justice Department.
“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.”
“The Department of Justice has a solemn responsibility to prosecute this case — like every other case — without fear or favor and, to quote the Department’s motto, solely ‘on behalf of justice,'” wrote Gleeson.
“It has abdicated that responsibility through a gross abuse of prosecutorial power, attempting to provide special treatment to a favored friend and political ally of the President of the United States,” he wrote.
“It has treated the case like no other, and in doing so has undermined the public’s confidence in the rule of law.”
In his recommendation that Flynn not be held in criminal contempt for perjuring himself, Gleeson wrote, “I respectfully suggest that the best response to Flynn’s perjury is not to respond in kind.”
“Ordering a defendant to show cause why he should not be held in contempt based on a perjurious effort to withdraw a guilty plea is not what judges typically do. To help restore confidence in the integrity of the judicial process, the Court should return regularity to that process.”
In contrast, Gleeson wrote,the Justice Department “has treated the case like no other, and in doing so has undermined the public’s confidence in the rule of law.”
“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.”