Court Adviser in Flynn Case Says Judge Should Deny DOJ Request to Drop Charges

June 10, 2020 Updated: June 10, 2020

The court-appointed adviser in the case against former national security adviser Michael Flynn argued in a brief on June 10 that the judge should reject the government’s motion to dismiss the charges.

Former federal judge John Gleeson said that the arguments the Department of Justice (DOJ) presented in its request to drop the case are not credible and accused the government of acting out of political motivation to assist an ally of President Donald Trump.

“The Government has engaged in highly irregular conduct to benefit a political ally of the President. The facts of this case overcome the presumption of regularity. The Court should therefore deny the Government’s motion to dismiss, adjudicate any remaining motions, and then sentence the Defendant,” Gleeson wrote.

Judge Emmet Sullivan appointed Gleeson as an amicus curiae after the DOJ moved to dismiss the charges against Flynn. Sullivan also tasked Gleeson with determining whether the court should move to demand that Flynn explain why he should not be charged with perjury. Gleeson determined that Flynn committed perjury but advised that Sullivan should take that into account in sentencing Flynn, rather than pressing a perjury charge.

The DOJ moved to dismiss its case against Flynn last month, telling the judge that the FBI had no basis to conduct the interview during which Flynn allegedly lied to federal agents. Flynn had pleaded guilty to the charge but more than two years later moved to withdraw the plea. Flynn argued his lawyers had a conflict of interest in a related case and that the special counsel pressured him to plea by threatening to prosecute his son.

Flynn’s attorneys have asked a higher court to intervene in the case after Sullivan proceeded to litigate the request to drop the charges. In a rare order, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit asked Sullivan to explain his actions and for Flynn’s attorneys and the DOJ to weigh in. The oral arguments over the appeal are scheduled for Friday.

Newly declassified documents show that the investigation of Flynn was discussed at the highest levels of the Obama administration, including by then-President Barack Obama himself. Then-FBI Director James Comey approved the closing of the case against Flynn as early as December 2016. The FBI filed formal paperwork to close the case on January 4, 2017, but the case was kept open by FBI agent Peter Strzok at the behest of senior management. The next day, Obama personally discussed the case with senior officials.

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