"The Government has engaged in highly irregular conduct to benefit a political ally of the President," said retired federal judge John Gleeson, who in a controversial move last month was tasked by district judge Emmet Sullivan to present arguments against the department.
"The Department of Justice has a solemn responsibility to prosecute this case—like every other case—without fear or favor and, to quote the Department’s motto, solely 'on behalf of justice,'" Gleeson continued. "It has abdicated that responsibility through a gross abuse of prosecutorial power, attempting to provide special treatment to a favored friend and political ally of the President of the United States. It has treated the case like no other, and in doing so has undermined the public’s confidence in the rule of law."
The Justice Department did not immediately respond to a request for comment on the filing, but is currently appealing Sullivan's refusal to dismiss the case to the D.C. Circuit Court of Appeals, which is considering whether to overrule Sullivan and throw out the case.
In his 73-page argument, Gleeson states his belief that Flynn "has indeed committed perjury in these proceedings, for which he deserves punishment," referring to Flynn's previous sworn statements in court in which he admitted lying to FBI agents who interviewed him at the White House in January 2017.
But Gleeson recommends that the court not move forward with a separate prosecution case against Flynn for committing perjury and instead "take Flynn’s perjury into account in sentencing him on the offense to which he has already admitted guilt."
"This approach—rather than a separate prosecution for perjury or contempt—aligns with the Court’s intent to treat this case, and this Defendant, in the same way it would any other," Gleeson writes.
Gleeson's motion repeatedly excoriates the conduct of the Justice Department over its sudden move to withdraw the charges and specifically its contention that it can no longer prove Flynn "knowingly and willfully made a false statement" in his interview with the FBI.
"Even recognizing that the Government is entitled to deference in assessing the strength of its case, these claims are not credible. Indeed, they are preposterous," Gleeson writes. "For starters—and most unusually—they are directly and decisively disproven by the Government’s own briefs filed just months ago in this very proceeding. They are also plainly inconsistent with prior orders of this Court, which constitute law of the case."
After appointing a U.S. attorney to review the FBI's initial handling of the case, Attorney General William Barr said that newly uncovered evidence detailing the conduct of agents who investigated Flynn led him to conclude their counter-intelligence probe was not legitimate, and that his lies were thus not "material" to any legitimate investigation.
Sullivan has set a schedule up that stretches into mid-July for Flynn's team and Gleeson to present counter arguments to one another, with an in-person argument between the parties currently set for July 16.
He has separately hired outside representation to argue against Flynn's lawyers in their request currently before the D.C. circuit to drop the case.