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Retired judge says court should reject "preposterous" DOJ move to drop Flynn case

Flynn, Kislyak transcripts released
Transcripts of calls between Michael Flynn and former Russian ambassador released 11:52

Washington — A retired judge brought in to argue against the Justice Department's motion to drop charges against Michael Flynn accused the department of "highly irregular conduct" and said a federal court should uphold the criminal charge against President Trump's first national security adviser.

In an 82-page brief filed in the U.S. District Court for the District of Columbia on Wednesday, retired U.S. District Judge John Gleeson argued that the Justice Department's request to drop the case should be rejected because of "deficient, pretextual" reasoning and "clear evidence of gross prosecutorial abuse."

"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," Gleeson wrote. "The Court should therefore deny the Government's motion to dismiss, adjudicate any remaining motions, and then sentence the Defendant."

U.S. District Judge Emmet Sullivan, who is presiding over the case, tapped Gleeson last month as a "friend of the court" to argue against the Justice Department's move to drop the criminal case against Flynn. 

Additionally, Gleeson was tasked with recommending whether Flynn should be subject to a contempt hearing for perjury, since he now claims to be innocent of the charge to which he previously pleaded guilty. 

Gleeson said Flynn did indeed commit perjury, but that Sullivan should take that into consideration at sentencing. "This approach — 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," he wrote. 

In early May the Department of Justice announced that it would move to dismiss the charge against Flynn in December 2017 using a rule in federal prosecutorial guidelines. Gleeson said the court can and should deny the motion, despite the court's inclination to defer to prosecutors.

"But as the D.C. Circuit has made clear, that deference is not blind and this Court is not a 'rubber stamp,'" Gleeson wrote. "Where the Government engages in corrupt, irregular conduct that threatens the legitimate interests of the Judiciary, it has no right to leave of court under [the rule]."

In an interview with CBS News' Catherine Herridge in May, Attorney General William Barr justified the department's decision to seek to drop the charge, claiming the FBI "did not have a basis for a counterintelligence investigation against Flynn" when they interviewed him in 2017 about his conversations with the Russian ambassador. Barr said a call between Flynn and the ambassador was "perfectly legitimate and appropriate" given Flynn's role in Mr. Trump's transition. 

Flynn was fired as national security adviser just weeks into the Trump administration for lying to Vice President Mike Pence about what he discussed with the Russian envoy. He was subsequently charged with lying to investigators in connection to special counsel Robert Mueller's Russia probe and pleaded guilty. 

In Wednesday's filing, Gleeson said Flynn "chose to lie about [the calls] — just as he had lied to various senior White House officials."

"That is about as straightforward a case of materiality as a prosecutor, court, or jury will ever see," Gleeson wrote. "In asserting otherwise, the Government struggles mightily to argue that Flynn's false statements neither affected nor could have affected the FBI's investigation of his and his colleagues' potential ties to the Russian government."

In response to Sullivan's decision to hear arguments over the Justice Department motion, Flynn's legal team appealed to the federal D.C. circuit court, asking them to order Sullivan to grant the motion to dismiss the case and reassign any future proceedings to another judge. Arguments in that dispute are scheduled for Friday. 

Asked for comment about Gleeson's filing on Wednesday, a Justice Department spokeswoman pointed to prosecutors' earlier court brief.

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