Michael Flynn committed perjury, and his guilty plea of lying to the FBI should not be dismissed, a court-appointed adviser argued to a federal judge Wednesday, calling the Justice Department’s attempt to undo the conviction corrupt, politically motivated and “a gross abuse of prosecutorial power.”
In a formal briefing to the judge overseeing Flynn’s case, former New York federal judge John Gleeson said Flynn’s guilt “could hardly be more provable.” He issued a sharp rebuke of the Justice Department’s move to abandon the long-running case and called out President Trump for refusing to accept “settled foundational norms of prosecutorial independence.”
“The Government has engaged in highly irregular conduct to benefit a political ally of the President,” Gleeson wrote in an 82-page brief to U.S. District Judge Emmet G. Sullivan.
Gleeson argued that though Flynn committed perjury by first admitting under oath to lying to the FBI about his Russian contacts and then seeking to rescind his guilty plea, Trump’s former national security adviser should not face a contempt hearing but instead be punished as part of his sentence.
“Flynn has indeed committed perjury in these proceedings, for which he deserves punishment, and the Court has the authority to initiate a prosecution for that crime,” Gleeson wrote. However, Gleeson said, moving Flynn’s case to sentencing “— rather than a separate prosecution for perjury or contempt — aligns with the Court’s intent to treat this case, and this Defendant, in the same way it would any other.”
Sullivan has paused Flynn’s case to hear from outside groups and appointed Gleeson to argue against the Justice Department’s May 7 motion to immediately drop its prosecution of the retired three-star general. Flynn was the highest-ranking Trump adviser convicted in special counsel Robert S. Mueller III’s investigation of Russian interference in the 2016 election.
Sullivan has set a July 16 hearing to weigh the unusual request, which came after Attorney General William P. Barr ordered a review of Flynn’s case. In the Justice Department’s motion, which is supported by Flynn and prompted a career department prosecutor to quit the case, the agency said it concluded that Flynn’s January 2017 FBI interview was unjustified. The Justice Department also said the interview was “conducted without any legitimate investigative basis,” so any lies Flynn told about his contacts with Russia and other foreign governments were immaterial to any crime.
The department cited newly uncovered FBI records showing the bureau had decided to close a counterintelligence investigation of Flynn before learning of his calls with former Russian ambassador Sergey Kislyak. The Justice Department said FBI officials also knew that the calls probably did not give rise to a crime by themselves and differed over how to handle or interpret his actions.
It won't matter much in the end, either way, Flynn will be pardoned if Sullivan refuses to drop the charges. But it does matter that we still have a judicial interested in preserving the rule of law, if only to serve as an example as to what is at stake in November.