WASHINGTON — The retired judge appointed to act as a friend of the court in the Michael Flynn case strongly urged the court Wednesday not to let the Justice Department abandon the prosecution.
In a scorching 83-page submission, John Gleeson said the government's move to drop the case was "riddled with inexplicable and elementary errors of law and fact," which were contradicted by the positions it has taken in other false statement cases and by its own previous court filings about Flynn's conduct as well as his decisions to plead guilty twice.
"Even recognizing that the Government is entitled to deference in assessing the strength of its case, these claims are not credible," the retired judge wrote. "Indeed, they are preposterous. For starters — and most unusually — they are directly and decisively disproven by the Government's own briefs filed just months ago in this very proceeding."
Gleeson said judges must ordinarily defer to the wishes of the Justice Department about whether to pursue a prosecution, but not when the motives of the government are suspect. In Flynn's case, the government's move to dismiss the case "is based solely on the fact that Flynn is an ally of President Trump."
Federal District Court Judge Emmet Sullivan of Washington appointed Gleeson to submit arguments about why the government should not be allowed to drop the case, so that Sullivan could consider both sides.
The appointment came after the Justice Department last month asked the judge to dismiss the case, having determined that even if Flynn lied to FBI agents in early 2017 about his phone calls with Russia's ambassador to the U.S., his lies were not "material" to any investigation and did not, therefore, violate the false statement law at the heart of his case.
Flynn told the FBI that he did talk to Ambassador Sergey Kislyak during the Trump transition but denied that they talked about Russia's response to the latest Obama sanctions or about a forthcoming UN vote. He later admitted that both those statements were untrue.
Those statements, Gleeson said, were clearly important to the FBI's investigation into potential connections between the Trump campaign and the Russian government.
"It is hard to conceive of a more material false statement than this one," Gleeson said.
Gleeson said without any firm legal basis for wanting to drop the case, the only other reason must be Flynn's relationship with Trump. Wednesday's brief noted that the president tweeted or re-tweeted about Flynn at least 100 times since March 2017.
Clearly the president is personally invested in ensuring that Flynn's prosecution ends, Gleeson said, adding, "Everything about this irregular."
As for separation of powers issues, Gleeson said the government had complete freedom to forego charging Flynn with a crime because he is a Trump loyalist, and the president has total authority to issue a pardon. But once the government filed the charges, "it forfeited the right to implicate this court in the dismissal of that charge simply because Flynn is a friend and politically ally of the president."
In answer to the other question the judge gave him, Gleeson recommended against finding Flynn in contempt of court for perjury. Better, he said, to take that into account when sentencing Flynn for lying to the FBI which would be more consistent with the way other defendants are treated.
Sullivan scheduled a hearing for July 17 on whether to let the government drop the case. Flynn's lawyers, however, asked a federal appeals court to order the judge to dismiss the case. A hearing on that request is set for June 12.