In an unsparingly critical 30-page brief, retired Judge John Gleeson, tapped by Judge Emmett Sullivan as an amicus to argue against the dismissal of the Michal Flynn case that the Trump “Injustice” Department sought to dismiss, suggests that the Department’s arguments for letting Flynn off the hook conflict with its positions in other cases — and even in earlier rounds of the Flynn case itself — and therefore can only be a pretext to help an ally of President Donald Trump.
POLITICO reports, Court-appointed adviser blasts ‘corrupt’ DOJ move to drop Flynn case:
“There is clear evidence that this motion reflects a corrupt and politically motivated favor unworthy of our justice system,” wrote Gleeson, a former federal judge in Manhattan who was appointed by President Bill Clinton.
Gleeson, acting as an “amicus” or friend-of-the-court, also faulted the Justice Department for not grappling in any way in its brief with Trump’s numerous statements blasting the criminal case and their potential impact on the decisions of prosecutors and their bosses.
“The government’s failure to defend its own pretextual reasoning is matched by its silence on the subject of abuse of power,” the ex-judge added. “The government makes virtually no effort to deny or rebut the powerful evidence that its…motion improperly seeks to place this Court’s imprimatur on a corrupt, politically motivated favor for the president’s friend and ally.”
Gleeson’s brief is the latest development in a convoluted legal saga that has stretched for 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 before the election. Later, after cooperating with special counsel Robert Mueller for nearly two years, Flynn moved to withdraw his guilty plea and allege he was set up by the FBI and coerced into pleading guilty by rogue prosecutors.
While two Republican appointed judges on the D.C. Circuit Court of Appeals had expressed skepticism that Sullivan had any other choice but to grant the government’s motion to drop the case, an en banc panel of the appellate court overturned them in an 8-2 ruling. Their doubts do not appear to have swayed Judge Gleeson.
If anything, he lit into the government and Flynn with even more gusto than in his prior filings in the case.
In his new brief, Gleeson emphasized that DOJ has never conceded one of Flynn’s central points: that his guilty plea was the product of prosecutorial misconduct. And that discrepancy, he says, tears the cover off the pretext for dismissing the case.
Gleeson also argued that Flynn should be punished for additional “perjurious” statements during earlier proceedings in the case, such as asserting in court under oath that he wasn’t coerced into pleading guilty. He has since claimed prosecutors threatened to prosecute his son, Michael Flynn Jr., if he didn’t plead guilty — a contention DOJ has rejected.
“[I]n refuting Flynn’s claims of prosecutorial misconduct as ‘unfounded,’ the Government makes clear there was no prosecutorial misconduct, coercion, or secret deals,” Gleeson argues. “Thus, in defense of its Rule 48(a) motion, the Government confirms that Flynn not only lied to this Court but is now doubling down by continuing to submit false allegations of prosecutorial misconduct to excuse his false denial of guilt.”
The Justice Department has argued that once it decided to dismiss the case, Sullivan had no leeway to consider alternative options. A prosecution without a prosecutor, they said, would violate the separation of powers. And despite allegations of corrupt motives behind the motion to dismiss, DOJ has emphasized that the case does not warrant Sullivan sidestepping the typical presumption of legitimacy afforded to prosecutorial decisions.
Under the rules that govern federal courts, prosecutors can move to dismiss a criminal case “with leave of court.” Such motions are routinely granted, but the circumstances under which a judge can reject such a request are the subject of heated debate.
Gleeson said DOJ’s argument “invokes a parade of false formalities that would reduce this Court to a rubber stamp,” a position he said would be untenable and must be rejected. “While the Executive is entitled to protect its privileges and deliberations, it is not entitled to offer pretextual reasons and demand that the court mechanically accept them,” he added.
Sullivan has set a hearing September 29 to hear arguments from prosecutors, Flynn and Gleeson on whether the case should be dismissed or carry on, possibly to sentencing Flynn on the felony false-statement count he pleaded guilty to almost three years ago.
A troubling sign of more rank corruption of the Trump “Injustice” Department about to drop any day now was the unexpected resignation by a principled long-time career prosecutor, Nora R. Dannehy, “the top investigator” on U.S. Attorney John Durham’s “investigation of the investigators” into the origins of the Russia investigation.
The New York Times reports, Top Aide in Review of Russia Inquiry Resigns From Justice Dept.:
A top aide to the criminal prosecutor whom Attorney General William P. Barr assigned to scrutinize the Trump-Russia investigation has resigned unexpectedly from the Justice Department, a spokesman said Friday.
It was not immediately clear why the official, Nora R. Dannehy — a trusted assistant to John H. Durham, the prosecutor leading the investigation and the U.S. attorney in Connecticut — stepped down.
But The Hartford Courant, which first reported her departure, cited unidentified colleagues in Mr. Durham’s office as saying that she had expressed concerns in recent weeks about pressure from Mr. Barr to deliver results ahead of the presidential election in November.
Note: The Department is inside its “60 day” window in which the Department is not supposed to make any public announcements that might affect the outcome of an election. Barr has repeatedly said that he does not feel bound by this long-standing DOJ policy.
Several officials said expectations had been growing in the White House and Congress that Mr. Barr would make public, ahead of the election, some kind of interim report or list of findings from Mr. Durham before he completed the investigation. Mr. Barr had wanted Mr. Durham’s team to move quickly, according to a person familiar with the matter.
Mr. Trump has long promoted Mr. Durham’s investigation as a way to back his own claims that the counterintelligence officials who sought to understand his campaign’s ties to Russia were carrying out a deep-state plot to sabotage him.
After the Justice Department’s independent inspector general, Michael E. Horowitz, found serious errors last year with one aspect of the Russia investigation but debunked any politically motivated plot, Mr. Trump said: “I look forward to the Durham report, which is coming out in the not-too-distant future. It’s got its own information, which is this information plus plus plus.”
Whether Mr. Barr and Mr. Durham plan to take public investigative steps close to the election, flouting a longstanding Justice Department practice of avoiding overt activity within 60 days of an election if it could have a political impact on the vote, has been the subject of growing scrutiny.
Mr. Barr has repeatedly raised tantalizing hints about Mr. Durham’s work, contrary to the department norm against speaking about continuing investigations except through indictments. And he has put forward a narrow interpretation of the so-called 60-day rule, saying it only meant the department should not indict a candidate for office or a close campaign associate.
“The idea is you don’t go after candidates, you don’t indict candidates, or perhaps someone that’s officially close to a candidate — that is essentially the same — within a certain number of days before an election,” Mr. Barr said in an April interview with the conservative radio host Hugh Hewitt. “But, you know, as I say, I don’t think any of the people whose actions are under review by Durham fall into that category.” (See again the department norm against speaking about continuing investigations except through indictments).
Mr. Barr assigned Mr. Durham last year to scrutinize the early stages of the Trump-Russia investigation shortly after the special counsel, Robert S. Mueller III, turned in his report that documented Russia’s extensive operations to sabotage the 2016 election and Mr. Trump’s efforts to thwart the inquiry.
While Durham is a longtime career prosecutor, Mr. Trump gave him a political appointment as the U.S. attorney for Connecticut in 2018.
Ms. Dannehy, who successfully prosecuted the former Connecticut governor John G. Rowland on corruption charges, had worked closely with Mr. Durham for years. Her husband, Leonard C. Boyle, is also a close colleague of Mr. Durham’s, serving as the first assistant U.S. attorney in Connecticut. He had previously served as the head of the Terrorist Screening Center, appointed by Mr. Mueller when he was F.B.I. director.
After Mr. Barr assigned Mr. Durham to investigate the Russia inquiry, he asked Ms. Dannehy to return from the private sector to serve as essentially his top investigator on the case. She has played a leading role in questioning witnesses about investigative actions, according to people familiar with the sessions.
This was not the first time that Ms. Dannehy had taken on a high-profile, politically fraught investigation. After a scandal over the George W. Bush administration’s firing of U.S. attorneys who were balking at demands, including by the White House, to bring or speed up voter-fraud cases against Democrats ahead of an election, Attorney General Michael B. Mukasey appointed her to scrutinize whether any laws were broken in one such instance.
While Ms. Dannehy did not find criminal wrongdoing in that dismissal, she suggested in her report that political pressure to rush out a case or charging decision before an election was wrong and potentially constituted obstruction of justice.
“Pressuring a prosecutor to indict a case more quickly to affect the outcome of an upcoming election could be a corrupt attempt to influence the prosecution in violation of the obstruction of justice statute,” Ms. Dannehy wrote. “The same reasoning could apply to pressuring a prosecutor to take partisan political considerations into account in his charging decisions.”
Few details about her resignation were disclosed on Friday evening, even as associates portrayed her as both a circumspect person and a prosecutor of rectitude.
“Nora Dannehy is apolitical, incorruptible and among the best prosecutors to ever represent the United States,” said Christopher M. Mattei, the former chief of the financial fraud and public corruption unit at the U.S. attorney’s office in Connecticut.
* * *
Mr. Barr’s appointment of Mr. Durham is part of a broader pattern in which [Barr] has repeatedly sought to cast aspersions on the Trump-Russia investigation, including by putting out an early public description of the then-still-secret Mueller report that a federal judge later said was so “distorted” and “misleading” in making it sound better for the president than it was that the judiciary could not trust his department on the topic.
When Mr. Horowitz completed his own review of the early stages of the F.B.I. investigation, he concluded that the bureau had a lawful basis to open the counterintelligence inquiry. In an extraordinary move, the Justice Department stepped on that finding by releasing a statement in the name of Mr. Durham disagreeing with Mr. Horowitz’s conclusion based on his own continuing inquiry, and let it be known that Mr. Barr sided with Mr. Durham.
Mr. Durham rarely speaks publicly, and prosecutors in his office were stunned that he had waded into political waters and publicly discussed a continuing investigation, one prosecutor who worked for him said.
* * *
Word of Mr. Durham’s work has emerged in fragments as his team, including Ms. Dannehy, has questioned various current and former officials about actions and decisions at both the F.B.I. and intelligence agencies, suggesting that they have pursued a series of conspiracy theories that have captivated Mr. Trump and his followers.
At one point last year, for example, Mr. Durham and Mr. Barr traveled to Italy to seek help from officials there to run down a notion that perhaps the Italian government helped set up a Trump campaign adviser who was told in early 2016 that the Russians had dirt on Hillary Clinton in the form of emails — a key part of the F.B.I.’s basis for opening the investigation. Italy’s intelligence services told Mr. Barr that they played no such role, Prime Minister Giuseppe Conte of Italy said in a news conference.
To date, the only publicly apparent concrete accomplishment of the Durham inquiry derived from Mr. Horowitz’s review. The errors that the inspector general’s team uncovered were in materials submitted for four wiretap applications under the Foreign Intelligence Surveillance Act targeting a former Trump campaign foreign policy adviser with significant links to Russian intelligence officials, Carter Page.
As part of that work, the inspector general’s team uncovered that during the preparations to apply for the final renewal of the wiretap, an F.B.I. lawyer assigned to assist the Crossfire Hurricane team, Kevin E. Clinesmith, prevented a colleague from recognizing that both that application and the three earlier ones had an important omission by adding words to a C.I.A. email about Mr. Page and showing it to the colleague.
Mr. Horowitz referred Mr. Clinesmith for criminal investigation, and Mr. Durham’s team prosecuted the case. Last month, Mr. Clinesmith pleaded guilty to one count of making a false statement by doctoring the email.
So one guy did something he shouldn’t have done, and he has plead guilty. It doesn’t in any way change the substance or the conclusions of the Mueller Report or the Horowitz report.
As David Atkins says at the Political Animal blog, “[A]s much as Democrats will have their work cut out for them next year, and as much as Republicans will howl about it, they cannot avoid the necessity of full investigations and inquiries into this administration’s abuses. People have to go to jail for what has happened, or there probably won’t be a democracy worth saving for long. To Save Democracy, Democrats Must Hold Trump Officials Accountable.