WASHINGTON — Accusing the Justice Department of a “gross abuse of prosecutorial power,” a former mafia prosecutor and retired federal judge urged a court on Wednesday to reject the Trump administration’s attempt to drop the criminal case against Michael T. Flynn, President Trump’s former national security adviser.
“The government has engaged in highly irregular conduct to benefit a political ally of the president,” wrote John Gleeson, who was appointed to a special role to argue against the Justice Department’s unusual effort to drop the Flynn case. He added: “Leave of court should not be granted when the explanations the government puts forth are not credible as the real reasons for its dismissal of a criminal charge.”
But Mr. Gleeson also argued in a 73-page brief that Mr. Flynn should not be held in criminal contempt of court for lying under oath when he gave conflicting statements about his actions. Instead, he wrote, the federal judge overseeing Mr. Flynn’s case, Emmet G. Sullivan, should take that behavior into account when imposing a sentence on Mr. Flynn.
The Justice Department “has treated the case like no other, and in doing so has undermined the public’s confidence in the rule of law,” Mr. 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.”
Judge Sullivan appointed Mr. Gleeson last month to help him analyze Attorney General William P. Barr’s request to dismiss the case against Mr. Flynn, who had twice pleaded guilty to a charge of lying to the F.B.I.
The Justice Department argued that Mr. Flynn’s lies were not “material” to any legitimate investigation — rejecting the department’s previous position that his lies were relevant to the counterintelligence inquiry into the scope of Russia’s covert operation to tilt the 2016 election in Mr. Trump’s favor and the nature of links to Trump campaign associates.
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