“The government’s ostensible grounds for seeking dismissal are conclusively disproven by its own briefs filed earlier in this very proceeding.”

A retired federal judge called the Trump administration’s attempt to dismiss the criminal case against Michael Flynn a “gross abuse of prosecutorial power,” Reuters reported. In May, lawyers for the US Department of Justice recommended the former national security advisor be set free from charges of lying to the FBI about Russia connections.

US District Court Judge Emmet Sullivan refused to immediately accept the Justice Department’s request, opting instead to gather more opinions on the matter. While accepting amicus briefs from experts on both sides, Sullivan also appointed retired Judge John Gleeson to act as a amicus curiae, or friend of the court.

‘Highly Irregular’

In doing so, Gleeson reviewed the facts of the case and authored a 73-page brief arguing that the Justice Department has “engaged in highly irregular conduct to benefit a political ally of the president.” As such, Gleeson wrote that Flynn’s case should not be dismissed based on the reasoning the Trump administration gave, The New York Times reported.

“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,” Gleeson wrote.

Furthermore, he said the department’s action in the case threaded to jeopardize “public’s confidence in the rule of law.” Flynn’s case has been handled preferentially when compared to other cases brought by the Justice Department, Gleeson wrote.

“The government’s ostensible grounds for seeking dismissal are conclusively disproven by its own briefs filed earlier in this very proceeding,” Gleeson wrote. “They contradict and ignore this court’s prior orders, which constitute law of the case. They are riddled with inexplicable and elementary errors of law and fact. And they depart from positions that the government has taken in other cases.”

The recent events surrounding the case don’t add up for Gleeson who remarked, “Everything about this is irregular.” Notably, President Donald Trump tweeted about the case more than 100 times as Flynn’s sentencing has remained on pause, POLITICO reported. Trump could simply pardon Flynn, Gleeson wrote, but by choosing to prosecute him, the administration gave up the write to have the court take part in dismissing the case due to his political connections.

Maintaining an Independent Court

Gleeson’s legal opinion in his amicus brief mirrored what he wrote in an op-ed published May 11 in The Washington Post. In it, he argued for an independent court, which “protects us all when executive-branch decisions smack of impropriety; it also protects the judiciary itself from becoming a party to corruption.”

He also noted the hypocrisy of the Justice Department’s argument. First, the department believed it had enough evidence to bring charges. It did so and secured a guilty plea from Flynn, which the court then accepted. 

However, the department now argues that it is incapable of proving the case against Flynn. Furthermore, the Justice Department has selectively disclosed and withheld evidence to portray Flynn as innocent.

“To help Flynn, the department has made public documents it jealously guards in almost every other case, including confidential memos and internal deliberations,” Gleeson wrote. “But it has balked at disclosing the transcripts of the very conversations with the Russian ambassador that Flynn admitted he lied about when the FBI interviewed him.”

Gleeson argued for the court to force the department to make those records public for the American people to decide for itself the guilt to innocence of Flynn.

‘Straightforward’ Case

The former judge was also asked by Sullivan to advise whether Flynn should be held in “criminal contempt for perjury.” Gleeson recommended that Flynn not be charged separately for lying under oath, but instead it could be factored into the sentencing. 

Flynn was one of the first Trump officials implicated in the investigation of Special Counsel Robert Mueller. Although he pled guilty and cooperated with the Mueller investigation, he changed his legal team in January and decided he wanted to withdraw his guilty plea, The New York Times reported.

For Gleeson, who chronicled the entire timeline of the case in his amicus brief, the case is open and shut.

“That is about as straightforward a case of materiality as a prosecutor, court, or jury will ever see,” Gleeson wrote.