Emmet Sullivan Judge Emmet Sullivan of the U.S. District Court for D.C. May 27, 2009. Photo: Diego M. Radzinschi/ALM.

Nearly two thousand former Justice Department officials on Monday urged a Washington judge to closely examine U.S. Attorney General William Barr's move to drop the prosecution of Michael Flynn, the former Trump national security adviser who twice pleaded guilty to lying to federal agents in the Russia investigation.

In an open letter, the former Justice Department officials from past Republican and Democratic administrations condemned the recent maneuvering in Flynn's case as a political favor for a friend of President Donald Trump and called on U.S. District Judge Emmet Sullivan of the District of Columbia to consider rejecting the motion to dismiss the prosecution and "proceed with sentencing if appropriate."

Sullivan has yet to give any public indication of how he will respond to the Justice Department's abandonment of Flynn's case, but many expect him to at least hold a hearing to question the reasoning for the move.

"While it is rare for a court to deny the department's request to dismiss an indictment, if ever there were a case where the public interest counseled the court to take a long, hard look at the government's explanation and the evidence, it is this one," the former Justice Department officials wrote. "Attorney General Barr's repeated actions to use the department as a tool to further President Trump's personal and political interests have undermined any claim to the deference that courts usually apply to the department's decisions about whether or not to prosecute a case."

Barr has strongly defended his Justice Department's move to end the Flynn case. Speaking with CBS news last week, Barr said a "fair history would say that it was a good decision because it upheld the rule of law. It helped, it upheld the standards of the Department of Justice, and it undid what was an injustice."

For many of the former federal prosecutors and other DOJ officials, the letter represented what in recent months has become a familiar exercise in protest. In February, many of them attached their names to a similar letter assailing Barr over his intervention in the case of Roger Stone, in which the attorney general overruled the sentencing recommendation of career prosecutors to suggest a shorter prison term for Trump's longtime friend.

With his move to dismiss the Flynn case, Barr has now "once again assaulted the rule of law," the former Justice Department lawyers said in their new letter.

"Make no mistake: The department's action is extraordinary rare, if not unprecedented. If any of us, or anyone reading this statement who is not a friend of the president, were to lie to federal investigators in the course of a properly predicated counterintelligence investigation, and admit we did so under oath, we would be prosecuted for it," the former DOJ officials added.

BIll Barr Attorney General William Barr testifies before the Senate Judiciary Committee on May 1. Photo: Diego M. Radzinschi / NLJ

The Justice Department, in its motion to dismiss, based the decision to drop Flynn's case on the argument that his lies to federal agents were not "material." The filing was signed only by the interim U.S. attorney in Washington, Timothy Shea, who previously served as a close aide to Barr.

The move to dismiss Flynn's case was foreshadowed by the withdrawal of Brandon Van Grack, a career prosecutor who served on special counsel Robert Mueller III's team and played a lead role negotiating the former national security adviser's plea deal in 2017. Barr's intervention in the Stone sentencing similarly coincided with career prosecutors dropping off the case. Another prosecutor, Jonathan Kravis, resigned from the Justice Department.

On Monday, Kravis joined in the growing criticism of the Justice Department's abandonment of Flynn's case. In a Washington Post op-ed, Kravis drew a parallel between the prosecutions of Stone and Flynn.

"In both cases, the department undercut the work of career employees to protect an ally of the president, an abdication of the commitment to equal justice under the law," wrote Kravis, who has since joined the District of Columbia attorney general's office in a three-month consulting role.

"Prosecutors must make decisions based on facts and law, not on the defendant's political connections. When the department takes steps that it would never take in any other case to protect an ally of the president, it betrays this principle."

 

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