A former judge appointed to oppose the Justice Department’s request to drop its case against Michael Flynn urged sentencing to move ahead in a court filing Wednesday, arguing the government’s request to dismiss the case has only “pretextual” justification.
Ex-Judge John Gleeson said in a DC federal court filing that “[t]he 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.”
Flynn, Trump’s former national security adviser, pleaded guilty in late 2017 to lying to the FBI about two calls with then-Russian Ambassador Sergey Kislyak, which carries a maximum five-year prison sentence, but he sought to withdraw his plea this year, saying he did not intentionally lie.
The Justice Department moved to drop its case against Flynn in May, finding FBI agents including Peter Strzok had no valid basis to interview Flynn days into Trump’s administration in January 2017 except to try and entrap him.
But Gleeson wrote there was “transparent disingenuousness” from the Justice Department.
“[T]he Government’s narrative is riddled with plot holes,” he wrote. “For example… when Flynn claimed to have forgotten aspects of the calls, the agents decided to help him out: they deliberately ‘refresh[ed] [Flynn’s] recollection’ by repeatedly prompting him with ‘the exact words Flynn used’ in his conversations with Kislyak.”
Flynn admitted in 2017 he was untruthful about discussing with Kislyak a U.N. vote and a request to resist escalating sanctions. Transcripts were released last month and Flynn’s GOP defenders say they prove there was “nothing improper” about the calls.
Other recently released documents revealed that the FBI nearly closed its investigation of Flynn on Jan. 4, 2017, after finding no evidence that he was a Russian agent. But Strzok and his mistress, former FBI attorney Lisa Page, with whom he traded anti-Trump text messages, intervened to keep the case open citing the obscure Logan Act of 1799, which bans ordinary citizens from conducting foreign diplomacy. The law is widely considered unconstitutional.
In his filing, Gleeson wrote, “any uncertainty whether Flynn’s apparent violation of the Logan Act could eventually be subject to criminal prosecution… does not affect the obvious counterintelligence reasons to conduct the interview.”
U.S. District Court Judge Emmet Sullivan appointed Gleeson, a former U.S. district court judge in New York also known for handling mafia cases as a prosecutor, to oppose the Justice Department’s request to drop the case. Both Sullivan and Gleeson were nominated to be judges by former President Bill Clinton.
In pleading guilty to lying to the FBI, Flynn avoided charges for working as an unregistered agent of Turkey and agreed to cooperate with investigators in the Russia probe. A subsequent investigation by special counsel Robert Mueller found no evidence of Trump-Russia collusion.
The Justice Department is moving forward with a case against former Flynn business partner Bijan Rafiekian, who was convicted last year of working as an unregistered Turkish lobbyist alongside Flynn.
Flynn’s calls with Kislyak were made in December 2016 with the knowledge of other Trump transition officials and the FBI had transcripts. A recently disclosed note from former FBI counterintelligence director Bill Priestap — after a meeting with then-FBI Director James Comey and then-FBI Deputy Director Andrew McCabe — read: “What’s our goal? Truth/Admission or to get him to lie, so we can prosecute him or get him fired?”
Gleeson wrote, however, that “even if the agents anticipated that Flynn might lie in the interview (and then keep on lying), he could easily have sidestepped that ‘trap’ by telling the truth.”
Gleeson also wrote, “A predicated investigation is never a prerequisite for the FBI to conduct a voluntary interview.”
The FBI’s interview of Flynn in late January 2017 occurred outside of standard protocol. Comey publicly acknowledged he sent agents including Strzok to interview Flynn days into Trump’s administration without informing the White House counsel’s office. Senior Justice Department leaders also were cut out of the decision, which former Deputy Attorney General Sally Yates said frustrated her.
Alleged violations of federal false statement laws aren’t always prosecuted. In what Flynn defenders see as a double standard, prosecutors recently decided not to prosecute McCabe, who was fired after an inspector general report identified multiple alleged lies to FBI officials about his role authorizing a leak to the media. Republican lawmakers, meanwhile, are pushing for information on seemingly inconsistent testimony from Comey and former intelligence director James Clapper about who briefed President Obama in early 2017 about Flynn’s calls.