Flynn 'pardon': Justice Department committed 'gross abuse of prosecutorial power'

A retired federal judge accused the Justice Department on Wednesday of a “gross abuse of prosecutorial power” and urged a court to reject its attempt to drop the criminal case against Michael T. Flynn, President Trump’s former national security adviser, reported The New York Times.

The arguments in a 73-page brief by John Gleeson, the retired judge and former mafia prosecutor appointed to argue against the Justice Department’s unusual effort to drop the Flynn case, were the latest turn in a politically charged case that now centers on the question of whether Mr. Flynn should continue to be prosecuted. He said Mr. Flynn should be sentenced.

The Justice Department’s intervention last month, directed by Attorney General William P. Barr, came after a long public campaign by Mr. Trump and his allies and prompted an outcry from former law enforcement officials that the administration was further politicizing the department.

Mr. Flynn’s lawyers and the Justice Department have sought to bypass Mr. Gleeson and the federal judge in the case who appointed him, Emmet G. Sullivan. An appeals panel will hear arguments on Friday about whether to dismiss the case without allowing Judge Sullivan to conduct his review of the department’s request to withdraw the charge against Mr. Flynn.

Mr. Gleeson’s brief amounted to a step-by-step dissection of the factual claims and legal arguments the Justice Department put forward last month to justify withdrawing a charge of making false statements that Mr. Flynn had twice pleaded guilty to. Mr. Gleeson said the department’s intervention was an example of the kind of “corrupt, politically motivated dismissals” that judges have the power to guard against.

“The reasons offered by the government are so irregular, and so obviously pretextual, that they are deficient,” Mr. Gleeson wrote. “Moreover, the facts surrounding the filing of the government’s motion constitute clear evidence of gross prosecutorial abuse. They 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 President Trump.”

But he also said that Mr. Flynn should not be held in criminal contempt of court for lying under oath when he gave conflicting statements about his actions to Judge Sullivan, a possibility that the judge had raised when appointing Mr. Gleeson last month.

The Justice Department plans to file its response to Mr. Gleeson’s brief in the coming days. But it is not clear whether the judge will get to complete his review and make the final decision. Mr. Flynn’s lawyer, Sidney Powell, and the Justice Department have asked the Court of Appeals for the District of Columbia Circuit to order him to dismiss the case against Mr. Flynn without further review.

They accused Judge Sullivan of abusing his power by appointing Mr. Gleeson to offer counterarguments rather than immediately ending the matter, citing a 2016 opinion by the appeals court that said that the judiciary “generally lacks authority to second-guess” executive branch decisions about whether to charge or drop a case.

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