Flynn Case Dismissal Isn’t Up for Debate, U.S. Tells Judge
Flynn Says Court Must Grant DOJ Request to Dismiss Criminal Case
(Bloomberg) -- The U.S. Justice Department said the courts have no right to question its decision to drop the criminal case against former National Security Advisor Michael Flynn, even if a judge suspects the move is a political favor to an ally of President Donald Trump.
The court system is a coordinate branch of government that must abide by the executive’s power to decide whom to prosecute -- regardless of concerns that a decision may be “pretextual,” the Justice Department under Attorney General William Barr said in a filing Wednesday in federal court in Washington.
The brief followed a similar one earlier in the morning from Flynn, who argued the entire case is a fraudulent “assassination by political prosecution” rooted in a corrupt FBI scheme to damage Trump.
Wednesday’s filings are the next step in a potentially damaging investigation by U.S. District Judge Emmet Sullivan into the government’s motives in walking away from the case, in which Flynn, a former Army general, previously pleaded guilty to lying to federal agents. The Justice Department last week asked a federal appeals court to order Sullivan to dismiss the case immediately, but the appellate panel signaled it was unlikely to constrain the judge.
Sullivan, who has set a July hearing on the matter, called the government’s action “unprecedented” and has made clear he won’t rubber-stamp its motion. In addition to appointing a retired federal judge and mob prosecutor, John Gleeson, as a “friend of the court” to argue against the government’s surprise motion to dismiss the case, Sullivan has accepted legal briefs from outside parties to help him decide the case.
The goverment and Flynn’s filings are a response to a scathing brief filed last week by Gleeson, who said the Justice Department’s May 7 request was a corrupt attempt to help a political ally of Trump and should be denied.
In its brief, the Justice Department said its argument was not intended “to suggest that prosecutorial favoritism is appropriate or that abuses of prosecutorial power must go unchecked.” But it said the proper remedy was public disapproval rather than “judicial override.”
Flynn’s brief on Wednesday challenged Gleeson’s findings. The former White House aide said the Justice Department had made the right move by ditching the case because recently unearthed evidence proves he was improperly set up to lie by partisan Federal Bureau of Investigation agents, who also coerced him by threatening to go after his son.
“This court’s friend simply ignores the indisputable, newly produced evidence proving that it is General Flynn who was singled out for a baseless, politically motivated investigation and prosecution,” Flynn’s attorney, Sidney Powell, said in the filing. She also accused Gleeson of engaging “in a flagrant personal and partisan assault on General Flynn, Attorney General Barr, and the President of the United States.”
The fight between the government and the judge is the latest twist in a legal battle that began when Flynn was charged in 2017 with lying to the FBI about his contacts with the Russian ambassador to the U.S. Though Flynn at first pleaded guilty and agreed to cooperate with Special Counsel Robert Mueller’s probe, he has more recently claimed he was the victim of government misconduct and sought to withdraw his plea and have the case dismissed.
Trump and his conservative allies have increasingly argued that Flynn was corruptly targeted as part of the Russia investigation “hoax,” adding to concerns that the dismissal request was the result of a pressure campaign.
Flynn hasn’t disputed the facts. He lied not only to the FBI but also to Vice President Mike Pence and Press Secretary Sean Spicer about the nature of his discussions with the Russian ambassador, conduct that investigators feared would expose him to potential blackmail attempts by the Russians.
The Justice Department said in its May 7 filing that dismissal was warranted because Flynn’s lies weren’t “material” to the Russia probe and that the agents didn’t have a proper “investigative purpose” in interviewing him. The agents were essentially trying to trap Flynn in a lie, the government said.
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