Ex-judge in Flynn trial calls refusal to dismiss case an ‘abuse of discretion’

The former Brooklyn federal judge appointed to fight the Justice Department’s move to drop the case against ex-national security adviser Michael Flynn wrote in an earlier ruling that it would be “an abuse of discretion” to deny the government’s motion to dismiss a case.

Then-Judge John Gleeson’s ruling came in the 2012 federal case against banking giant HSBC, which at the time had negotiated a deal to avoid criminal prosecution in a case related to lax controls on money laundering.

“The government has absolute discretion to decide not to prosecute,” Gleeson wrote.

“In my view, if the government were now moving to dismiss this case, it would be an abuse of [judicial] discretion to deny that motion,” he said.

The government’s agreement with the bank called for it to pay $1.9 billion and institute reforms over a five-year period, at which point the charges would be dropped, as they were in 2017.

But while Gleeson called a refusal to dismiss an abuse, he also hedged later in the 20-page ruling, suggesting that a judge could refuse a government motion to dismiss if doing so were in the best interests of the public.

Quoting from an earlier ruling in a separate case, Gleeson wrote: “A court is generally required to grant a prosecutor’s motion unless dismissal is ‘clearly contrary to manifest public interest.’”

He also referred to prosecutors having “near-absolute power” as opposed to absolute power.

There are other differences in the cases as well.

HSBC never pleaded guilty, and ultimately escaped with the fine and reforms with no criminal prosecution, an agreement derided by critics at the time as a slap on the wrist.

Flynn, conversely, was facing a trial in December 2017 when he pleaded guilty to lying to the FBI, though he later withdrew the plea and has asked for a new trial.

Washington, DC, federal Judge Emmet Sullivan, who presides over Flynn’s case, named Gleeson to advise the court on whether it “should issue an order to show cause why Mr. Flynn should not be held in criminal contempt for perjury” pursuant to a federal law that gives judges broad authority to punish “misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice,” according to the New York Law Journal.

But as The Post reported Thursday, it appeared that Gleeson had already made up his mind, judging from an op-ed he wrote this week for the Washington Post.

“Flynn’s guilt has already been adjudicated,” Gleeson wrote with David O’Neil and Marshall Miller, both former high-ranking Justice Department officials and Gleeson’s partners in the Debevoise & Plimpton law firm.

“So if the court finds dismissal would result in a miscarriage of justice, it can deny the motion, refuse to permit withdrawal of the guilty plea and proceed to sentencing,” they continued.

“There has been nothing regular about the department’s effort to dismiss the Flynn case. The record reeks of improper political influence.”

But Gleeson’s op-ed makes it clear where he stands, as he asserts that reversing Flynn’s guilty plea on lying to the FBI over his 2016 contacts with then-Russian Ambassador Sergey Kislyak would “smack of impropriety.”