The federal judge overseeing the case against President Donald Trump’s former national security adviser Michael Flynn has appointed a retired judge to challenge the Justice Department’s abrupt effort to dismiss the case, according to reports.
Judge Emmet Sullivan’s appointment of former prosecutor John Gleeson late Wednesday is seen as a major curve ball in the case the DOJ had pursued in court since 2017, when Flynn pleaded guilty to lying to the FBI as part of the investigation into Russian interference in the 2016 election.
Trump and his supporters have embarked on a long campaign for Flynn’s name to be cleared, while Flynn has sought to withdraw his guilty plea.
The Justice Department announced late last week that it was dropping the charges, concluding that special counsel Robert Mueller did not have “a legitimate investigative basis” to interview Flynn about his communications with the Russians during the presidential transition.
Attorney General William Barr said that dropping the case against Flynn was in the interests of justice, but on Monday nearly 2,000 former Justice Department officials signed a letter calling for Barr to resign, saying he had undermined the rule of law by intervening in the case.
Judge Sullivan next refused to immediately sign off on the Justice Department decision, saying he would instead let the outside legal community weigh in about the move first.
An extraordinary move
Legal experts expected Sullivan to ask for additional information from the DOJ about its decision, or to ask for more details about why it was moving to abandon the case.
But then late Wednesday he surprised with the extraordinary move of appointing Gleeson, who will also explore a perjury charge against Flynn, according to reports.
While judges do sometimes appoint such third parties to represent an interest they feel is not being heard in a case, Sullivan’s move was highly unusual, said Samuel Buell, a former federal prosecutor who now teaches criminal law at Duke University, The New York Times reported.
Sullivan, he said, is essentially bringing in an outsider to represent the point of view of the original prosecutors, who believed Flynn had committed a crime before Barr intervened and essentially replaced them with a prosecutor willing to say he had not, the Times reports.
“This is extraordinary for the judge to appoint somebody to argue against a prosecutors’ motion to dismiss a criminal case,” Buell said. “But it’s extraordinary for a prosecutor to move to dismiss this sort of criminal case.”
“What the Justice Department did in the first case is, as far as any of us can figure out, unprecedented,” he added. “So the fact that this is pretty unprecedented too is not that surprising.”
Gleeson, who served on the federal bench in Brooklyn and had run the criminal division in the federal prosecutor’s office there, has already made plain his skepticism of the motion to dismiss the Flynn case. He co-wrote an op-ed article this week in The Washington Post encouraging Sullivan to scrutinize it.
Political implications
The case holds deep political implications as President Donald Trump seeks to shift the focus away from his handling of the coronavirus pandemic ahead of the November election and recast the Russia investigation as a “deep state” plot to sabotage his administration.
A full exoneration for Flynn would also set the stage for a fresh onslaught of election-year attacks on Democratic front-runner Joe Biden, whose name was revealed Wednesday along with several Obama-era officials who reportedly ‘unmasked’ Flynn’s identity in redacted intelligence documents related to Mueller’s investigation.
The declassified document released by acting director of National Intelligence Richard Grenell also names former FBI Director James Comey and intelligence chiefs John Brennan and James Clapper, and former President Barack Obama’s chief of staff Denis McDonough.
In an interview with Good Morning America Tuesday, Biden denied any connection to the case.
“I know nothing about those moves to investigate Michael Flynn,” Biden said, but later in the interview admitted to George Stephanopoulos that he had been briefed on the Flynn investigation.
“I thought you asked me whether or not I had anything to do with him being prosecuted,” Biden explained. “I’m sorry. ... I was aware that there was — that they asked for an investigation, but that’s all I know about it, and I don’t think anything else.”
Trump pushes ‘Obamagate’ theory
Trump is rallying his supporters on social media, saying the Justice Department's latest actions are evidence of “Obamagate,” a conspiracy theory pushing the notion that the previous administration tried to undermine him during the presidential transition in 2017.
Obama ignited a social media storm last weekend after a tape-recorded call surfaced of him criticizing Trump's response to the pandemic and also questioning Barr’s decision to drop charges against Flynn, saying “the rule of law is at risk.”
“And the fact that there is no precedent that anybody can find for someone who has been charged with perjury just getting off scot-free. That’s the kind of stuff where you begin to get worried that basic — not just institutional norms — but our basic understanding of rule of law is at risk. And when you start moving in those directions, it can accelerate pretty quickly as we’ve seen in other places,” Obama said.
Flynn actually pleaded guilty to charges of lying to the FBI, and not perjury as Obama mistakenly said in the call.
News about Obama’s call swirled in the media over the weekend, with Trump retweeting several conspiracy theories accusing the former president “of the biggest political crime in American history.”
The theory trended on Twitter through the hashtag #OBAMAGATE.
It was the latest in a web of conspiracies circulating online that all claim rogue officials in the Obama administration broke the law to try to prevent Trump from becoming president.
Adding more fuel to the controversy was Trump’s Monday press briefing at the White House Rose Garden, where Washington Post reporter Philip Rucker pressed Trump about his tweets, some of which suggested Obama had committed crimes while in office.
Asked what crimes the former president had committed, Trump avoided any specifics.
“Obamagate!” Trump exclaimed, repeating the trending hashtag. “It’s been going on for a long time. Some terrible things happened. And you’ll be seeing what’s going on over the coming weeks.”
Rucker then asked, “What is the crime exactly that you’re accusing him of?”
“You know what the crime is,” Trump said. “The crime is very obvious to everybody. All you have to do is read the newspapers, except yours.”
— Information provided by The New York Times was used to supplement this report.
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