Flynn Judge Calls U.S. Dismissal Request ‘Unprecedented’
Flynn Judge Defends Refusal to Rubber-Stamp Case Dismissal
(Bloomberg) -- The judge overseeing Michael Flynn’s prosecution called the Justice Department’s attempt to drop its case against President Donald Trump’s former national security advisor “unprecedented” and asked a federal appeals court not to short-circuit his inquiry into the government’s actions.
U.S. District Judge Emmet Sullivan in Washington on Monday said in a court-mandated brief that the unusual developments give him a plausible reason to question the “bona fides” of the government’s motion. Sullivan said the surprise May 7 dismissal request cited “minimal legal authority” and didn’t come from the line prosecutors who worked on the three-year-old case, in which Flynn twice pleaded guilty to lying to the FBI in the early days of the Russia probe.
“It is unprecedented for an Acting U.S. Attorney to contradict the solemn representations that career prosecutors made time and again, and undermine the district court’s legal and factual findings, in moving on his own to dismiss the charge years after two different federal judges accepted the defendant’s plea,” Sullivan said in his brief. The lead prosecutor in the case stepped down just before the request was filed.
The Justice Department pushed back in its own 42-page filing Monday saying the judge had no power to inquire further and asking that the case be dismissed at once. “The Constitution vests in the executive branch the power to decide when -- and when not -- to prosecute potential crimes,” U.S. Solicitor General Noel Francisco said in the filing.
Republican Party leaders, including Senate Majority Leader Mitch McConnell and Texas Senator Ted Cruz, also urged the appeals court to step in and order Sullivan to dismiss the case, saying allowing the judge to proceed with the hearing would be unconstitutional, in violation of the separation of powers.
The U.S. Court of Appeals in Washington last month ordered Sullivan to respond to Flynn’s claim that the judge was exceeding his authority by not immediately dismissing the case. Sullivan’s brief pushes back forcefully on that argument and is sure to add to the debate about the independence of both the judiciary and the Justice Department sparked by the request to dismiss a case Trump has repeated assailed as being part of the Russia “hoax.”
Sullivan said the unique facts of Flynn’s case required that dismissal be weighed carefully, including the fact that the defendant was claiming innocence after repeatedly swearing under oath that he committed the crime.
Flynn’s lawyer, Sidney Powell, didn’t immediately respond to a message seeking comment.
While judges are often overruled by appeals courts, it’s rare that they are required to personally explain their actions. Sullivan’s unusual brief is the latest twist in a case that the president and his allies in recent months have slotted into a narrative that casts the investigation of Russian interference in the 2016 election as a plot by Obama-era officials to undermine the incoming administration.
The May 7 filing by Attorney General William Barr’s Justice Department said dismissal was warranted because Flynn’s lies weren’t “material” to the Russia probe and that the FBI agents didn’t have a proper “investigative purpose” in interviewing him.
But instead of immediately granting the government’s request, Sullivan named a former federal judge and mob prosecutor, John Gleeson, to argue against the Justice Department’s position and address whether Flynn should be held in contempt of court for committing perjury when he pleaded guilty. Sullivan has also accepted outside briefs on the matter.
In its filing Monday, the government took aim at Sullivan’s contempt inquiry, saying the trial court had no authority “to assume the role of the prosecutor and initiate criminal charges of its own.”
Flynn admitted lying to the FBI agents about his contacts with the Russian ambassador to the U.S. in December 2016. Trump fired Flynn after it was revealed that he’d also lied to Vice President Mike Pence about the conversations.
“The fact that General Flynn previously pled guilty and otherwise faces sentencing makes no difference,” the Republican leaders said in their 16-page brief, adding Sullivan can’t act as a judge and a prosecutor at the same time. “To allow the possibility of such an experiment to proceed below would have grave consequences, which this court should halt now.”
Sullivan, who was appointed by President Bill Clinton, hired Washington litigator Beth Wilkinson to file his response with the appeals court. Taxpayers will be footing the bill for Wilkinson’s work.
Wilkinson is no stranger to politically charged cases. She represented Supreme Court Justice Brett Kavanaugh during his fraught confirmation to the high court. But she is also representing Summer Zervos, a former contestant on Trump’s reality TV show “The Apprentice” who sued the president for defamation after he publicly denied her claims that he sexually assaulted her.
©2020 Bloomberg L.P.