Gleeson’s Assignment is the latest in a tangled legal saga that spans nearly three years. Flynn pleaded guilty in December 2017 to lying to the FBI about his contacts with Russian Ambassador Sergey Kislyak in the weeks leading up to the election. Later, after working with special adviser Robert Mueller for nearly two years, Flynn withdrew his guilty plea, claiming he was set up by the FBI and forced by rogue prosecutors to plead guilty.
In May, the Justice Department accepted some of Flynn’s arguments and dismissed the case. The FBI had no legitimate reason to interrogate Flynn when Director James Comey sent two agents to the White House to discuss his talks with Kislyak in January 201
Sullivan’s decision to not simply approve the government’s motion, but instead appoint Gleeson to argue against it and schedule a hearing on the matter, prompted Flynn’s attorneys to make an unusual plea to the DC Circuit Court of Appeals to instruct Sullivan to close the prosecution immediately.
The first three-judge appeal panel split 2-1 to approve Flynn’s motion, but a Sullivan attorney challenged that decision and the DC Circuit’s full bank later overturned it in an 8-2 ruling.
While some of the appellate judges were clearly skeptical that Sullivan had no choice but to agree to the government’s motion to drop the case, those doubts appear to have not influenced Gleeson. If anything, he beamed even more enthusiasm at the government and Flynn than in his previous records.
In his new brief, Gleeson emphasized that the DOJ had never admitted one of Flynn’s central points: his admission of guilt was the result of misconduct by the prosecutor. And that discrepancy, he says, rips the cover off the pretext for dismissing the case.
Gleeson also argued that Flynn should be punished for additional “affidavits” during previous trials in the case, such as the judicial allegation under oath that he was not compelled to plead guilty. Since then, he has alleged prosecutors threatened to prosecute his son Michael Flynn Jr. if he pleaded guilty – a claim the DOJ has denied.
“[I]n The government rejects Flynn’s allegations of prosecution wrongdoing as “unfounded” and makes it clear that there was no wrongdoing, coercion or secret dealings by the prosecution, “argues Gleeson. “In confirmation of their Rule 48 (a) motion, the government confirms that Flynn not only lied to this court, but is now doubling down by continuing to bring false accusations of wrongdoing to the prosecutor to excuse his false negligence.”
The Justice Department has argued that with the decision to dismiss the case, Sullivan had no leeway to consider alternative options. Prosecution without a public prosecutor would violate the separation of powers. And despite allegations of corrupt motives behind the dismissal motion, the DOJ has insisted that the case does not warrant Sullivan’s evasion of the typical presumption of legitimacy offered by law enforcement decisions.
According to the rules of the federal courts, public prosecutors can dismiss criminal proceedings “with the permission of the court”. Such requests are routinely granted, but the circumstances under which a judge can deny such a request are the subject of heated debate.
But Gleeson said the DOJ’s argument “creates a parade of false formalities that would reduce this court to a stamp,” a position he said was untenable and must be rejected.