Michael Flynn: Five takeaways from retired judge's scathing review of DOJ's motion to drop case

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A former federal district court judge appointed to assess the Justice Department’s motion to drop charges against former Trump national security advisor Michael Flynn has filed a scathing amicus brief against the government, writing that the facts surrounding it “constitute clear evidence of gross prosecutorial abuse.”

Here are five takeaways from the amicus brief filed by retired judge John Gleeson of the Eastern District of New York on Wednesday:

1. The DOJ’s request to dismiss charges was a ‘gross abuse of prosecutorial power,’ retired judge says

Mr Gleeson succinctly stated his bottom line in the conclusion of his amicus brief conclusion: The presiding judge, Emmet Sullivan, should deny the government’s motion to dismiss charges against Mr Flynn, though he should not pursue a perjury case against Mr Flynn.

Instead, he should take Mr Flynn’s perjurious actions into consideration at his sentencing, Mr Gleeson recommended.

The government did not file its motion to dismiss the charges based on any new factual evidence. Rather, the decision has the appearance of being politically motivated, Mr Gleeson wrote.

Underscoring that point is the fact that the only signatory of the DOJ’s 7 May 2020 motion to dismiss was a political appointee, then-Acting United States Attorney for the District of Columbia Timothy Shea.

A career prosecutor who had worked on the case since before charges were filed withdrew from it that same day as Mr Shea’s motion, ostensibly in protest of his superior’s decision.

2. Mr Flynn’s about-face on his guilty plea may hurt his fate at sentencing

Mr Flynn initially pleaded guilty to charges of lying to the FBI in January 2017 about his conversations with then-Russian Ambassador to the US Sergey Kislyak.

In 2018, he abruptly reversed his position.

On three separate occasions from 2017 to 2018, Mr Flynn affirmed under oath before the court that he knowingly lied to the FBI about his contacts with Mr Kislyak.

Mr Flynn later contradicted himself, again under oath, saying he “did not lie” to FBI investigators during the 24 January 2017 interview, but was “honest with them to the best of [his] recollection at the time.”

Furthermore, Mr Flynn’s lawyers have argued, the FBI agents who interviewed Mr Flynn on 24 January 2017 unfairly targeted him due to his political connection with the incoming president, Donald Trump.

Those statements do not square with Mr Flynn’s previous admissions under oath, providing “more than sufficient evidence” for the government to file additional perjury charges against Mr Flynn, Mr Gleeson wrote in his amicus brief.

"A false eleventh-hour disavowal of a plea and a trumped-up accusation of government misconduct constitute obstruction of the administration of justice," Mr Gleeson wrote.

Mr Gleeson recommended, however, that Mr Sullivan decline to hold Mr Flynn in criminal contempt and instead consider his obstruction of the court at sentencing.

3. Mr Trump will dismiss the scathing amicus brief as just another swamp hit piece

The luxury afforded to Mr Trump by his anti-establishment campaign message is that it insulates him and his political allies from outside condemnation just like the amicus brief filed by Mr Gleeson on Wednesday.

Mr Gleeson was nominated to be a federal district court judge for the Eastern District of New York by Bill Clinton in 1994. He served on the bench for 22 years until March 2016.

It did not take long for Mr Gleeson, who was assigned as an independent and credible “friend of the court,” to become a lightning rod for conservative criticism, with Fox News host Mark Levin dubbing him a “political hack and ideologue.”

Mr Trump’s attacks on inspectors general and career non-partisan diplomats has extended to the judicial branch, roughly two-thirds of which is filled with judges selected by Mr Trump’s predecessors, the very “establishment” figures he often rails against.

As of Wednesday afternoon, Mr Trump had not yet publicly commented on Mr Gleeson’s amicus brief.

4. The president was his own worst enemy in Flynn case

Perhaps Mr Gleeson’s most readily available data points to oppose the government’s decision to drop the charges came from Mr Trump himself.

Namely, the president’s Twitter account.

Mr Trump has tweeted more than 100 times about Mr Flynn since March 2017, which, Mr Gleeson wrote, makes clear he “has been closely following the proceedings, is personally invested in ensuring that Flynn’s prosecution ends, and has deep animosity toward those who investigated and prosecuted Flynn.”

The president has signalled — publicly — that he feels a personal stake in Mr Flynn’s acquittal.

The DOJ’s grounds for dismissal of the charges against Mr Flynn “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 Mr Trump,” Mr Gleeson concluded.

5. Trump’s DOJ fumbled the Flynn football a long time ago — but the president can still take matters into his own hands

Had Mr Trump and his administration asserted their desire not to pursue charges against Mr Flynn before the charges were ever filed, it’s likely the former national security adviser would have become history much more quickly.

But that isn’t what happened. Mr Flynn was charged in December 2017, and from that point on, the government had ceded control of the case to the court of jurisdiction.

“The instant the Executive Branch filed a criminal charge against Flynn, it forfeited the right to implicate this Court in the dismissal of that charge simply because Flynn is a friend and political ally of the President. Avoiding precisely that unseemly outcome is why Rule 48(a) requires ‘leave of court,’” Mr Gleeson wrote.

Mr Trump still has the option of pardoning Mr Flynn, though he’ll have to weigh the political consequences of making that decision before the 3 November 2020 election.

“President Trump today has the unreviewable authority to issue a pardon, thus ensuring that Flynn is no longer prosecuted and never punished for his crimes because he is a friend and political ally,” Mr Gleeson wrote.