'Preposterous' and a 'gross abuse' of power: A road map to resist dismissing Flynn case

A remarkable thing has happened in a remarkable case.

In the prosecution of former national security adviser Michael Flynn, a retired judge filed a brief Wednesday in which he powerfully argues that the government has engaged in a "gross abuse of prosecutorial power” for the purpose of benefiting “a political ally” of President Donald Trump. He urges the court to reject Trump’s threat to prosecutorial independence by denying the government’s motion to dismiss the case and proceeding to sentencing.

Last month, the acting U.S. attorney in the District of Columbia, Timothy Shea, filed a motion to dismiss the charge against Flynn. Special counsel Robert Mueller had charged the former national security adviser in 2017 with making false statements during an interview with the FBI shortly after Trump became president. According to the charging document, to which Flynn pleaded guilty, he falsely denied talking with a Russian diplomat in December 2016 about U.S. sanctions against Russia and a United Nations’ vote. In his plea agreement, Flynn also admitted to making false statements in his lobbying disclosure forms regarding his work on behalf of the government of Turkey.

After Mueller submitted his report to Attorney General William Barr and closed down the Office of Special Counsel last summer, Flynn stopped cooperating, obtained a new lawyer and sought to withdraw his guilty plea. Until recently, the government had taken the position that Flynn’s statements were false and material. But last month, instead of responding to Flynn’s motion, Shea filed the motion to dismiss the case against Flynn, a highly unusual step in a case where a defendant has already admitted his guilt.

Classic example of 'dubious dismissal'

U.S. District Judge Emmet Sullivan, faced with an unusual situation, appointed retired Judge John Gleeson as “amicus curiae,” or friend of the court, to help him make sense of the government’s about-face. Gleeson is a former federal prosecutor known for convicting noted mob boss John Gotti. He later served as a federal judge in Brooklyn for 22 years.

As Gleeson explains in his brief, federal rules require “leave,” or permission, of the court before a case may be dismissed. The purpose of the rule is to prevent “dubious dismissals of criminal cases that would benefit powerful and well-connected defendants.” Gleeson argues that a dismissal of Flynn’s case would provide precisely that kind of inappropriate benefit to a close associate of the president.

Gleeson argues that the government’s stated reasons for seeking dismissal are “pretextual” and overcome the presumption of regularity. In an 82-page brief, he convincingly rebuts the government’s argument that the evidence is insufficient to prove that Flynn’s lies were material or that he made them knowingly and willfully. Calling the government’s arguments “preposterous,” Gleeson details how they “depend on misstatements of law, distortions of fact and departures from positions DOJ has repeatedly taken in cases not involving the president’s political allies.”

For example, Gleeson points out that materiality requires only that a false statement have a natural tendency to influence a matter under investigation. Here, Flynn, who was serving in the sensitive position of national security adviser, “repeatedly lied about the nature and extent of his communications with a senior official of a hostile foreign power that was being sanctioned by the U.S. government for interfering with the U.S. presidential election.”

These lies certainly had a tendency to influence, and, in fact, did influence an investigation by the FBI into potential threats to national security.

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Gleeson similarly skewers arguments that the government could not prove that Flynn lied knowingly and willfully, calling these contentions “even more implausible than” the materiality arguments. He points to several facts to support the conclusion that when Flynn spoke to the FBI, he remembered discussing sanctions with the ambassador: Flynn was having contemporaneous conversations with members of the Trump transition team to discuss what to say to the ambassador about the sanctions, Russia acted on his request, Flynn spoke again to the ambassador, who told him that Russia had acted because of his request, Flynn reported to his deputy that his calls had made a difference and Russia’s response was a newsworthy event that Trump tweeted about.

These facts support a fair conclusion that when Flynn was interviewed by the FBI one month after these events occurred, he remembered discussing sanctions with the ambassador. Nothing about the evidence has changed since the government brought this case.

'Severe breakdown' of independence

In addition to exposing the pretextual nature of the government’s position, Gleeson makes an even more significant argument — that the government’s motion to dismiss amounts to "gross abuse" of power by Trump. He argues that the evidence shows close coordination between Flynn and other members of the Trump campaign. Flynn discussed the Russian calls with members of the transition team, and Trump and others tried to keep reports about them out of the press.

Gleeson's brief notes that Trump asked former FBI Director James Comey to let go of the investigation into Flynn. And he says Trump himself has engaged in “running public commentary,” tweeting more than 100 times and making it clear that he is “personally invested in ensuring that Flynn’s prosecution ends, and has deep animosity toward those who investigated and prosecuted Flynn.”

“These tweets,” Gleeson writes, “were issued against the background of a severe breakdown in the traditional independence of the Justice Department from the president.” Trump has “publicly repudiated settled, foundational norms of prosecutorial independence.”

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Gleeson argues that the Department of Justice had the unreviewable choice of declining charges against Flynn, and that Trump still has the unreviewable choice of pardoning Flynn, but by filing charges in court, they “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.”

The U.S. Court of Appeals for the District of Columbia Circuit will hold oral argument on Friday on a request by Flynn for a writ of mandamus, which would direct Judge Sullivan to grant the Justice Department's motion to dismiss without further action. Let’s hope the court takes a moment to consider Judge Gleeson’s perspective and allow Judge Sullivan to make his own decision before deciding whether to review it.

As Gleeson explains, the purpose of the rule requiring the court to approve a dismissal is to protect the “judiciary’s independent interest in the integrity of its own proceedings.” Barr and Shea may be allowing Trump to use the Department of Justice as a tool of his political machinery, but the court should resist following.

Barbara McQuade, a former U.S. attorney for the Eastern District of Michigan, is a professor at the University of Michigan Law School, an NBC and MSNBC legal analyst, and a member of USA TODAY's Board of Contributors. Follow her on Twitter: @BarbMcQuade

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This article originally appeared on USA TODAY: Trump-Barr reversal on Flynn was all about helping an ally: Gleeson