In a scathing 30-page filing urging U.S. District Judge Emmet Sullivan to reject the department's May request, John Gleeson, a Debevoise & Plimpton LLP partner and former federal judge and prosecutor, wrote that there's clear evidence DOJ's "motion reflects a corrupt and politically motivated favor unworthy of our justice system."
Gleeson, whom Judge Sullivan appointed to argue against the DOJ's motion, wrote that the department neither acknowledged nor conceded to Flynn's assertion that his pleading guilty to lying to the FBI about his contacts with a former Russian ambassador was the product of prosecutorial misconduct. In the government's mid-June response to Gleeson's opening brief, the DOJ also failed to address statements by Trump lambasting the criminal case as unfair, nor did it explain the potential effect of the president's comment on prosecutions, the retired judge added.
"The government does not disagree with any of this — presumably because it cannot," Gleeson wrote. "Indeed, the government nowhere even mentions the president's personal lobbying, let alone his virulent attacks on those previously involved in this prosecution."
"Based entirely on evidence already in the public view, the only coherent explanation for the government's exceedingly irregular motion — as well as its demonstrable pretexts — is that the Justice Department has yielded to a pressure campaign led by the president for his political associate," he added.
The court-appointed amicus curiae also maintained that the former Trump national security adviser's case, brought by then-special counsel Robert Mueller's probe into Russian interference in the 2016 presidential election, is part of a pattern of "troubling indications of improper interference with criminal cases involving the president's personal and political associates."
Gleeson pointed to U.S. Attorney General William Barr, who earlier this year rescinded prosecutors' initial sentencing recommendation that Trump's longtime ally and former campaign aide Roger Stone serve seven to nine years in prison. Barr asked for a more lenient term after Trump publicly criticized the original memo. The original prosecution team, which quit in protest, had said Stone, who was convicted last year of lying to investigators and obstructing Russia election interference probes, was motivated by a desire to cover for Trump.
Emphasizing that his reference to the DOJ's handling of Stone's case is to "merely provide context," Gleeson added that the "only evidence that ultimately matters is the record I have outlined above: a record replete with patently pretextual attempts to justify what is plainly a corrupt political errand for the president."
"Given this evidence, the court should not allow itself to become an instrument of the government's abuse of the judicial process or the public trust," the retired judge wrote. "That would sully Article III."
Under Federal Rule of Criminal Procedure 48(a), which allows a case to be dismissed by the government with "leave of court" — meaning with a judge's permission, Gleeson added that "the court can — and should — deny the government's motion, adjudicate any other pending motions, and then proceed to sentence Flynn for his crime."
Friday's brief is the latest turn in the complex legal saga after Flynn, 61, pled guilty in December 2017 of lying to the FBI about his discussions with a Russian ambassador regarding sanctions imposed on Russia by the Obama administration during Trump's presidential transition. Earlier this year, the retired Army general sought to withdraw the plea, accusing prosecutors of acting in bad faith.
The DOJ moved to end the case on the basis that Flynn's admitted lies were "not material" to any viable investigation and that the FBI unfairly targeted him.
The department also said that a review of the case ordered by Barr found reason to doubt investigators' motives, and that the probe had unearthed notes in which an FBI official — revealed in a memo to be then-counterintelligence chief Bill Priestap — mused about getting Flynn to lie in the interview. Flynn's supporters, including the president, have seized on unsealed FBI records they say prove he was framed.
After the district court judge indicated he's not a rubber stamp and that he wants to carefully scrutinize the government's motion before deciding whether to grant it, Flynn — with the backing of the DOJ — asked the D.C. Circuit to order immediate dismissal. Flynn's legal team accused Judge Sullivan of overstepping his judicial authority by second-guessing the DOJ's exercise of prosecutorial discretion. They also claimed the trial judge is biased and sought to remove him from the case.
But in an 8-2 ruling last month overturning a previous split ruling in favor of Flynn's request, the D.C. Circuit said Judge Sullivan can continue his inquiry.
During oral arguments, all of the judges seemed to agree that a felony count against Flynn will ultimately be dismissed. In their Aug. 31 ruling, the majority said granting Flynn's petition would be premature and extreme because Judge Sullivan should get the opportunity to rule on the pending motion first. If he denies the request, the order added, Flynn would have the opportunity to appeal.
In Friday's brief, Gleeson acknowledged the executive branch's authority and need to protect its privileges and deliberations, but contended "it is not entitled to offer pretextual reasons and demand that the court mechanically accept them."
Judge Sullivan is set to hear oral arguments on Sept. 29 to determine Flynn's fate.
A lawyer for Flynn and a spokeswoman for the DOJ did not immediately reply Friday to requests for comment about Gleeson's court filing.
Flynn is represented by Sidney Powell and Molly McCann of Sidney Powell PC, and Jesse R. Binnall, Lindsay McKasson and Abigail Frye of Harvey & Binnall PLLC.
The government is represented by Jeffrey Wall and Jocelyn Ballantine of the U.S. Attorney's Office for the District of Columbia.
The case is U.S. v. Flynn, case number 1:17-cr-00232, in the U.S. District Court for the District of Columbia.
--Editing by Adam LoBelia.
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