Flynn Judges Express Doubt About Letting DOJ Toss Case Now
Flynn Lawyer Tells U.S. Appeals Court Case Must End Immediately
(Bloomberg) -- Federal appeals court judges peppered lawyers for Michael Flynn and the Justice Department with tough questions on why they should issue an extraordinary order forcing the dismissal of the case.
Sidney Powell, the attorney for President Donald Trump’s first national security adviser, told an appeals panel in Washington Friday that the lower-court judge “has no authority to do anything further in this case,” after the Justice Department decided to seek an end to its prosecution of Flynn even after he pleaded guilty to lying to FBI agents during the Russia probe.
But the appellate judges, two of whom are Republican appointees, were wary of undertaking the “drastic remedy” of stepping into a case when U.S. District Judge Emmet Sullivan hasn’t yet issued a ruling on the government’s motion to dismiss. Sullivan has set a hearing for July and appointed an amicus, or friend of the court, who filed a brief Wednesday opposing the government’s move as a “corrupt” and “politically motivated” attempt to help a Trump ally.
Karen Henderson, one of the appeals court judges, called Sullivan “an old hand” and and “excellent trial judge” and noted he might yet rule in favor of Flynn and the government.
“I don’t see why we don’t observe regular order and allow him to rule,” she said. “For all we know, he may say, ‘this amicus brief is over-the-top, dismissal granted.’”
Another judge, Robert Wilkins, asked a Justice Department lawyer if the government would have authority to dismiss a hypothetical case for “racist” reasons, without the judge inquiring into its actions.
‘Intrusive Process’
Deputy U.S. Solicitor General Jeff Wall argued that Sullivan had no authority to inquire into the Justice Department’s motives for seeking the case’s dismissal and that the decision to prosecute or not rested exclusively with the executive branch of government.
“I think it is an intrusive process and it is going to harm the executive,” Wall said under questioning by the judges. “We can’t ignore that it’s playing out in a politicized environment” with allegations that Barr and Trump “engaged in grave misconduct.”
Beth Wilkinson, the Washington litigator Sullivan hired to argue on his behalf, got fewer questions from the court. She was grilled by appellate judge Neomi Rao over her suggestion that the judicial rather than the executive branch should decide if a criminal case is in the public interest. Wilkinson said Sullivan has some leeway because the government must request “leave of court” to dismiss the case.
If the case is tossed, it will bring to an end a prosecution that Trump and his conservative allies have attacked as corrupt. But a ruling the other way may open the door to a potentially damaging inquiry by a judge into whether the Justice Department is acting chiefly to protect a political ally of the president.
The arguments are focused on a technical though politically charged question: Does Sullivan have authority to inquire if the government has political motives for dismissal. Or must he accede to the Justice Department? Powell is seeking an order that would force Sullivan’s hand.
The hearing is the latest twist in a prosecution that began when Flynn lied to two FBI agents in January 2017 about phone calls with the Russian ambassador the previous month. Fired by Trump soon after, Flynn pleaded guilty in 2018 to charges brought by Robert Mueller’s team investigating Russian interference in the 2016 election. He later repeated his guilty plea.
Since then, Flynn’s case has more recently become a rallying cry for conservatives and the president, who has frequently called the Russian investigation a “hoax.” In January, Flynn sought to withdraw his plea and have the case thrown out, claiming misconduct on the part of prosecutors and the FBI.
The Justice Department made its request to drop the case on May 7, saying Flynn’s lies to the two agents weren’t “material” to the Russia probe and that he shouldn’t have been interviewed in the first place.
Toward that end, Sullivan appointed a former federal judge and mob prosecutor, John Gleeson, to argue against the Justice Department’s dismissal motion. It was Gleeson who issued the blistering amicus brief Wednesday discussed by many on the appeals court. He not only urged the judge to deny the dismissal request and pass sentence but to also adding time for perjury based on Flynn’s prior guilty plea.
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