DOJ committed 'gross abuse' of power in asking to drop case against ex-Trump advisor Michael Flynn, says former judge tapped to review request

Key Points
  • A former federal judge 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.
  • Flynn "has indeed committed perjury" in his statements to a federal judge in the case "for which he deserves punishment," ex-judge John Gleeson wrote.
  • Flynn has twice admitted to lying to FBI agents about his talks with a Russian diplomat before Trump's inauguration. Attorney General William Barr is seeking to have the case dismissed.
Gen. Michael Flynn, former national security adviser to US President Donald Trump, leaves Federal Court December 1, 2017 in Washington, DC.
Brendan Smialowski |  AFP | Getty Images

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 opposing the proposed dismissal. Trump has strongly criticized the prosecution of Flynn.

Gleeson, who was assigned by the judge in Flynn's case to advise him on several questions, also wrote that the retired Army lieutenant general "has indeed committed perjury" in his statements to the case judge during proceedings in the case, "for which he deserves punishment."

But Gleeson added that while federal Judge Emmet Sullivan has the power to hold Flynn in criminal contempt for perjuring himself during a plea hearing and another hearing conducted by Sullivan, the judge 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 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 in the case.

The Justice Department had no immediate comment on Gleeson's court filing.

Flynn's lawyer, Sidney Powell, in an email said that the filing was "predictable and wrong. Clearly result-driven to achieve the maximum possible punishment of an innocent man."

Gleeson was appointed by Sullivan to provide legal arguments against the Justice Department's highly unusual request last month that the case be dismissed.

Sullivan also asked Gleeson to address whether Flynn should be punished for committing perjury 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 during court hearings when he admitted criminal conduct.

Flynn's lawyers have asked a federal appeals court to remove Sullivan from the case because he has not promptly granted the dismissal requests by DOJ and Flynn's defense team, because he asked Gleeson to file legal briefs and because the judge is allowing outside parties to make arguments in court filings on the dismissal bid.

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 filing seeking the dismissal, the then-interim U.S. attorney for the District of Columbia, Timothy Shea, 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. Shea is a former advisor to Attorney General William Barr, the head of the Justice Department.

U.S. Attorney General Bill Barr listens during a roundtable discussion with law enforcement hosted by U.S. President Donald Trump in the State Dining Room at the White House in Washington, U.S., June 8, 2020.
Kevin Lemarque | Reuters

Gleeson dismissed Shea's arguments, saying that the excuses given by the 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 employed by 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."

Dept. of Justice drops criminal case against ex-Trump advisor Flynn: AP

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," referring to the irregularity of the Justice Department's recent conduct.

"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."

"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."