WASHINGTON — The judge overseeing the prosecution of Michael T. Flynn, President Trump’s former national security adviser, has no authority to reject Attorney General William P. Barr’s decision to drop the case, the Justice Department argued on Wednesday.
In a 41-page brief to Judge Emmet G. Sullivan, the department argued that even if its rationale for dropping the case were a “pretext” and the move really stemmed from improper political motivation — as an outside lawyer appointed to critique the move has claimed — it would make no difference.
“Even if a court believes that a refusal to prosecute rests on an improper motive or amounts to a ‘gross abuse,’ it would lack any practical mechanism for forcing the executive to prosecute a case against its will,” prosecutors wrote. They called their motion to dismiss the charge “an unreviewable exercise of prosecutorial discretion.”
The brief also reiterated the Justice Department’s central argument from its motion to drop the case — that Mr. Flynn’s lies to the F.B.I. in January 2017 about his calls with the Russian ambassador the previous month were not “material” to any legitimate investigation. But it shifted greater emphasis to portraying as suspicious some actions by the agents investigating Mr. Flynn.
The filing is the latest turn in the politically charged case as Judge Sullivan considers whether to side with the department and dismiss the case — and, if he does, whether to do so in a way that would prevent future prosecutors from refiling charges against Mr. Flynn or to leave open that possibility — or instead to deny the department’s motion and proceed to sentencing Mr. Flynn.
Mr. Flynn has twice admitted under oath that he lied to the F.B.I. as part of a plea deal that would also resolve any criminal liability for his failure to register as a paid foreign agent of Turkey and then signing forms that lied about that work. But in January, he sought to withdraw his guilty plea. In May, Mr. Barr directed the department to drop the case.
Judge Sullivan appointed John Gleeson, a former mafia prosecutor and retired judge, to critique the government’s arguments. Mr. Gleeson filed a scathing brief last week contending that prosecutors’ rationale made no sense and must be cover for a corrupt and politically motivated decision. He recommended instead sentencing Mr. Flynn.
Mr. Flynn’s lawyer, Sidney Powell, has asked an appeals court to order Judge Sullivan to immediately end the case. During arguments before a panel of that court last week, however, the judges asked questions that suggested that they were likely to let Judge Sullivan complete his review before ruling.
In the meantime, the case against Mr. Flynn has proceeded before Judge Sullivan. Wednesday was the deadline for the government and Ms. Powell to file briefs responding to Mr. Gleeson.
The central justification of the department’s motion to dismiss the case was its claim that Mr. Flynn’s lies were immaterial to any legitimate investigation. It emphasized that the F.B.I. had been about to close an inquiry into whether Mr. Flynn was himself a Russian agent, but then used that inquiry to question him about his calls with the ambassador.
Mr. Gleeson had ridiculed that rationale. Among other things, he said, Mr. Flynn’s talks with the ambassador — and his subsequent lies about them to colleagues like Vice President Mike Pence — were obviously material to the larger Trump-Russia investigation, and he noted that the F.B.I. did not need an open preliminary or full investigation to conduct a voluntary interview anyway.
The new Justice Department brief was silent about several such holes that Mr. Gleeson poked in its materiality theory. Prosecutors instead told Judge Sullivan that he had no right to inquire about internal Justice Department deliberations to “look beyond the government’s stated reasons in this case to a determination of whether the court believes those reasons were mistaken.”
But the brief also shifted to putting greater emphasis on portraying with suspicion the behavior of F.B.I. officials who investigated Mr. Flynn, suggesting that this pattern separately justified a decision to drop the case, both to serve the interests of justice and because a jury might acquit him if there were a trial.
Prosecutors had already disclosed to Mr. Flynn, before he pleaded guilty, some of the behavior the brief recounted anew — such as that one of the agents who interviewed him, Peter Strzok, had sent messages showing he did not like Mr. Trump’s election, and that he and his colleague said after the interview that they had not seen physical indications that Mr. Flynn was lying.
(In his brief, Mr. Gleeson had noted that Mr. Flynn’s supporters were inconsistent about Mr. Strzok — both suggesting that he sought to entrap Mr. Flynn and yet emphasizing that he had let it be known that he was not sure whether Mr. Flynn had lied based on his mannerisms.)
Other documents became public more recently, after Mr. Barr opened a review of the case file for additional material to turn over to Ms. Powell.
These included that James B. Comey, the F.B.I. director at the time, angered Justice Department officials by unilaterally sending agents to question Mr. Flynn, short-circuiting deliberations among law enforcement officials over whether to tell the White House counsel. In addition, a senior F.B.I. official had taken notes for a meeting about the Flynn interview musing about whether the goal was to get Mr. Flynn to tell the truth or to get him to lie so he could be fired or prosecuted.
The brief’s greater emphasis on portraying F.B.I. actions negatively dovetailed with arguments Ms. Powell has made claiming prosecutorial misconduct, including by failing to turn over some of those documents earlier. But a footnote in the department brief rejected her accusation, saying, “Flynn’s allegations are unfounded and provide no basis for impugning the prosecutors from the D.C. United States attorney’s office.”
Still, the new government brief cast a cloud over not just Mr. Strzok but the other agent who interviewed Mr. Flynn, Joe Pientka. Prosecutors questioned whether a jury would trust them since the interview with Mr. Flynn was not recorded and several of the things in their report about the interview were not reflected in the notes they jotted down while talking to him.
“While such discrepancies would not always be significant, given the other evidence and substantial impeaching materials on the key witnesses, it posed another reason to doubt the government’s ability to make out its case beyond a reasonable doubt to a jury in the circumstances of this case,” prosecutors wrote.
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