Attorneys for former National Security Advisor and retired Lt. Gen. Michael Flynn responded on Wednesday to the lengthy filing by court-appointed amicus John Gleeson, calling the Gleeson brief a “flagrant personal partisan assault” on Flynn, Attorney General William Barr and President Donald Trump.
Flynn’s team said U.S. District Judge Emmet Sullivan exceeded his authority by appointing Gleeson as amicus curiae in the first place. Worse yet, the lawyers said, Gleeson used the opportunity to launch a partisan assault.
“This court exceeded its authority under the Constitution to solicit amici and to appoint an amicus. That chosen amicus has now engaged in a flagrant personal and partisan assault on General Flynn, Attorney General Barr, and the President of the United States,” the filing began, before saying that Gleeson ignored evidence that Flynn was victimized by the FBI. “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.”
The specter of Peter Strzok and Lisa Page was raised once more:
In a rarely-mentioned text message the Government has never produced to General Flynn,2 FBI Agent Strzok reveals that [Bill] Priestap “doesn’t want Clapper giving CR cuts [transcripts on Crossfire Razor, the codename for the Flynn operation] to [the Obama] WH. All political, just shows our hand and potentially makes enemies.” (emphasis added). After Lisa Page’s reminder about including it already in the “doc on fri,” Strzok revealed the ultimate problem: “should we[?], particularly to the entirety of the lame duck usic [United States intelligence community] with partisan axes to grind.” (emphasis added). Ex.1.
Gleeson argued on June 10 that DOJ committed a “gross abuse” of prosecutorial power by giving special treatment to President Trump’s “political ally” in Flynn. The special treatment? DOJ’s motion to dismiss the prosecution against Flynn for lying to the FBI about his contact after the 2016 election with Sergey Kislyak, the former Russian Ambassador to the United States. Flynn previously pleaded guilty but fired his lawyers, hired new ones and then moved to withdraw his plea. Eventually the DOJ officially adopted the position of Flynn’s legal team, namely that the case should be dismissed for the rest of time.
Flynn’s legal team, led by conservative lawyer Sidney Powell, said it was “stunning” that Gleeson accused Barr’s DOJ of giving politically motivated special treatment to a crony of the president.
“The irony and sheer duplicity of Amicus’s accusations against the Justice Department now—which is finally exposing the truth—is stunning. Amicus’s filing is a ‘wrap-up smear,'” the response to Gleeson continued. “It is an affront to the Rule of Law and a raging insult to the citizens of this country who see the abject corruption in this assassination by political prosecution of General Flynn. This court exuviated any appearance of neutrality when it unlawfully appointed Amicus as its own adversary to make these scurrilous arguments.”
Flynn’s lawyers asserted that Sullivan had no authority to appoint Gleeson and should immediately dismiss the prosecution because there is no longer a case or Article III controversy at issue.
“The game is over; the Government has left the field. This court must leave the field also,” Team Flynn declared.
Gleeson argued in his brief that Judge Sullivan should deny the DOJ’s motion to dismiss the case. He also argued that it was clear Flynn committed perjury:
The Court has also asked me to address whether it should issue an order to show cause why Flynn should not be held in criminal contempt for perjury. Flynn has indeed committed perjury in these proceedings, for which he deserves punishment, and the Court has the authority to initiate a prosecution for that crime. I respectfully recommend, however, that the Court not exercise that authority. Rather, it should take Flynn’s perjury into account in sentencing him on the offense to which he has already admitted guilt. 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.
Gleeson said that the DOJ “abdicated” its “solemn responsibility” to do impartial justice when it gave Flynn special treatment. He recommended that Flynn’s “perjury” be taken into account at sentencing for lying to the FBI.
“The Department of Justice has a solemn responsibility to prosecute this case—like every other case—without fear or favor and, to quote the Department’s motto, solely ‘on behalf of justice.’ It has abdicated that responsibility through a gross abuse of prosecutorial power, attempting to provide special treatment to a favored friend and political ally of the President of the United States. It has treated the case like no other, and in doing so has undermined the public’s confidence in the rule of law,” Gleeson wrote. “I respectfully suggest that the best response to Flynn’s perjury is not to respond in kind. Ordering a defendant to show cause why he should not be held in contempt based on a perjurious effort to withdraw a guilty plea is not what judges typically do.”
Flynn’s lawyers shot back that Gleeson was an “appalling” amicus choice who has accomplished little more than feeding headlines to the piranha press:
The choice of this particular amicus to appear against the Government and the defense is appalling. As counsel for Respondent admitted in oral argument in the D.C. Circuit, Gleeson was assigned by the court to be the adversary to the Government and General Flynn—to take over the role of the Government—in violation of the executive’s core function in Art. II. Gleeson advertised his bias to obtain the appointment. “The Court’s interest in ensuring compliance with proper rules of judicial administration is particularly acute when those rules relate to the integrity of judicial processes”) John Gleeson, David O’Neil, and Marshall Miller, The Flynn Case Isn’t Over Until the Judge Says it’s Over, WASH.POST (May 11, 2011), https://www.washingtonpost.com/opinions/2020/05/11/flynn-case-isnt-over-until-judge-says-its-over/. He has accomplished that goal by willful blindness to the new evidence, a baseless “wrap-up smear” of General Flynn in a filing made to fuel the headlines and feed the piranha of the press, and distortions of clear legal precedent.
On a related note, everyone is still waiting to see if the U.S. Court of Appeals for the District of Columbia Circuit will grant Flynn’s emergency petition for a writ of mandamus, which would direct Judge Sullivan to dismiss the case.
[image via Alex Wroblewski/Getty Images]
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