On Wednesday, former National Security Advisor Michael Flynn's legal team and the Department of Justice filed responses to the inflammatory brief written by Michael Gleeson on behalf of District Judge Emmet Sullivan. Judge Karen LeCraft Henderson referred to Gleeson as an "intemperate amicus" during oral arguments before the D.C. Circuit last week.
In Flynn's legal team's brief, they reiterated their arguments that Judge Sullivan inappropriately appointed Gleeson, and Judge Sullivan's refusal to dismiss the charges represents a violation of the Separation of Powers. The brief also illustrated how Gleeson failed to acknowledge the exculpatory evidence that has been uncovered:
Amicus elides the reality of the egregious government misconduct of the FBI Agents—particularly that of Comey, McCabe, Strzok, Page, Pientka, Priestap and others who met repeatedly to pursue the targeted “take-out” of General Flynn for their political reasons and those of the “entirety lame duck [United States Intelligence Community].” Much of this has been revealed in the December 19, 2019, IG Report, the 86 pages of newly produced exonerating material produced by U.S. Attorney Jensen, filed in the Government’s Motion to Dismiss (ECF No. 198), and hundreds of the texts between Strzok and Page demonstrating abject bias.
Amicus is lost down the rabbit hole on the other side of the looking glass—where “nothing would be what it is, because everything would be what it isn't. And contrary wise, what is, it wouldn't be. And what it wouldn't be, it would.” Restoring and applying the Rule of Law requires accepting the reality that this court lacks authority or reason to take any action other than to dismiss this prosecution.
CBS' Catherine Herridge illustrated earlier this week how the investigation into Flynn was set to be closed before rogue FBI agents intervened:
Agent Strzok intervened. NOTE: FBI closing memo 1/04/2017 states Flynn had passed earlier background checks + maintained active security clearance TS/SCI (Top Secret/Sensitive Compartmented Information) often handled in secure facility/SCIF to protect sources, methods. @CBSNews pic.twitter.com/VRMR7p4J8b— Catherine Herridge (@CBS_Herridge) June 17, 2020
The DOJ's brief focusses on why Gleeson's interpretation of Rule 48 was faulty and why Judge Sullivan's investigation into Flynn for contempt was inappropriate and violated the Separation of Powers. Even if Gleeson's interpretation of Rule 48 was correct, the case still should have been dismissed:
Even assuming that a district court may ever deny an unopposed motion to dismiss, it may do so only in extraordinary circumstances. The Supreme Court has explained that, even in those few areas where a federal court may review a decision whether to prosecute, the court must apply a “presumption of regularity,” presuming that prosecutors “have properly discharged their official duties” unless “clear evidence” shows otherwise. Armstrong, 517 U.S. at 464 (citation omitted). The D.C. Circuit likewise has emphasized that “‘judicial authority is … at its most limited’ when reviewing the Executive’s exercise of discretion over charging determinations.” Fokker, 818 F.3d at 741.
It's unknown when the D.C. Circuit will release it's decision in the Flynn case.
Sidney Powell, lead counsel for Flynn, will be speaking at RNLA's webinar entitled "Defending Former National Security Advisor, General Michael Flynn" on Friday, July 26th. You can register for the webinar here. Powell will also be speaking at RNLA's National Election Law Seminar on July 10-11 at The Greenbrier in West Virginia. You can register for NELS 2020 here.