WASHINGTON — Lawyers for Michael Flynn and the Justice Department told a federal judge on Wednesday that he must agree to dismiss the criminal case against President Donald Trump's former national security adviser because the judge has no authority to do anything else.
They were responding to a court filing from John Gleeson, a retired judge appointed to act as a friend of the court. Gleeson's assignment was to argue the opposite — that the judge has the power to decide whether to let the government drop the case that accused Flynn of lying to the FBI about his conversations with Russia's ambassador to the United States.
Gleeson told Federal District Court Judge Emmet Sullivan last week that the Justice Department's move to drop the case was a departure from positions federal prosecutors have taken in other false statement cases. The government's argument for abandoning the prosecution was so weak, Gleeson said, that it appeared to be "based solely on the fact that Flynn is an ally of President Trump."
In response on Wednesday, Flynn's lawyer, Sidney Powell, said Sullivan shed any appearance of neutrality by appointing Gleeson "to make these scurrilous arguments" about the government's reasons for wanting to drop the case. Both Flynn and the government said the judge has no discretion and must grant the motion to end the prosecution.
Flynn's filing said the judge cannot examine the government's reasons, beyond looking at the current record. The judge has no power, either, to appoint a friend of court like Gleeson who is acting like a special prosecutor, Powell said.
As for whether Flynn should be punished for pleading guilty twice and then changing his story, Powell said that's not a basis for finding him in contempt of court.
Suggesting he might have committed perjury is "baseless and spurious," Powell said, comparing it to statements made by Sullivan during a sentencing hearing two years when he told Flynn "you sold your country out" and might have committed treason.
"There never should have been so much as an investigation — much less an assassination by political prosecution" of Flynn, Powell said.
Sullivan has scheduled a hearing for July 16 on whether to let the government drop the case. Flynn's lawyers separately asked the Court of Appeals for the District of Columbia to order Sullivan to grant the government's motion to end the prosecution. But during oral argument June 12, it did not appear that the appeals court was likely to grant that request.