A former judge on Wednesday called the Trump administration’s attempt to dismiss charges against Michael Flynn, Donald Trump’s former national security adviser, a “gross abuse” of power.
John Gleeson, who was appointed by the judge in Mr Flynn’s case to argue against the dismissal, said the Department of Justice had “engaged in highly irregular conduct to benefit a political ally of the president” in moving to drop the prosecution.
Mr Flynn, a former general who was Mr Trump’s first national security adviser, had pleaded guilty to lying to the FBI about phone calls he held with the Russian ambassador in January 2017 before the president took office.
However, he sought to withdraw the plea last year and in May the justice department, at the direction of William Barr, the attorney-general, moved to drop the case, arguing that Mr Flynn should never have been interviewed by the FBI and that his lies were not material.
The unusual events have sparked a fierce controversy over the independence of the justice department under Mr Barr, a Trump appointee who has been among the president’s most effective defenders, and also the separation of powers between the courts and the executive branch.
Emmet Sullivan, the judge overseeing Mr Flynn’s case, has refused to immediately dismiss the charges as requested by the justice department and Mr Flynn’s legal team. He appointed Mr Gleeson to argue the other side of the matter before he makes a decision.
On Friday, the appeals court in Washington will hear arguments on whether Mr Sullivan has acted properly in his handling of the dismissal request.
Mr Gleeson on Wednesday argued there had been “a severe breakdown in the traditional independence of the justice department from the president” and said the department’s claims in seeking to dismiss the case “are not credible. Indeed, they are preposterous.”
“[T]hey depend on misstatements of law, distortions of fact, and departures from positions that DoJ has repeatedly taken in cases not involving the president’s political allies,” Mr Gleeson wrote in his 82-page brief.
A spokeswoman for Mr Barr did not immediately return a request for comment. Sidney Powell, lawyer for Mr Flynn, called Mr Gleeson’s brief “predictable, wrong, and result-driven”.
Mr Barr has strongly criticised the investigation into Mr Flynn, as well as the broader probe into Russian meddling in the 2016 election. In its filing to dismiss the case, the justice department said a counter-intelligence investigation of Mr Flynn in 2016 had turned up no derogatory evidence, and that the FBI had bypassed normal procedure for White House officials when it interviewed him in 2017.
Mr Barr defended Mr Flynn’s conversations with Sergei Kislyak, the Russian ambassador, after Mr Trump won the 2016 election but before taking office as “laudable”. Mr Flynn had urged Mr Kislyak to temper the Russian response to punishments imposed by the Obama administration for interfering in the 2016 election.
Mr Flynn previously admitted to lying to other White House officials about the content of the calls, and also to FBI agents. The case against him was brought by Robert Mueller, the former special counsel.
The move to dismiss Mr Flynn’s case came after Mr Barr also intervened in the sentencing of Roger Stone, another Trump ally, to lower the amount of jail time requested by prosecutors.
The attorney-general has also been in the spotlight in recent weeks for his leading role in the federal government’s response to protests in the US capitol over the killing of George Floyd in police custody.
He deployed a variety of federal forces on to the streets of Washington, including some units who refused to identify themselves or wear insignia, and gave the order to clear protesters from outside the White House.