Judge asks court not to ‘short circuit’ review of Flynn case

WASHINGTON — The Justice Department’s conduct in abruptly deciding to end the case against President Donald Trump’s former national security adviser Michael Flynn was so unusual that it raised a “plausible question” about the legitimacy of the move, a lawyer for the trial judge overseeing that case told a federal appeals court Monday.

In a 36-page filing, the lawyer for Judge Emmet G. Sullivan of the U.S. District Court for the District of Columbia asked a three-judge panel not to cut short his review of the factual and legal issues surrounding the case. A defense lawyer for Flynn had asked the appellate panel to issue a so-called writ of mandamus ordering the judge to immediately dismiss it without letting him complete an assessment.

“The question before this court is whether it should short-circuit this process, forbid even a limited inquiry into the government’s motion and order that motion granted,” wrote the lawyer, Beth Wilkinson. “The answer is no. Mandamus is an extraordinary remedy that should be denied where the district court has not actually decided anything.”

But the Trump administration, in its own brief, urged the appeals court to shut down the case without any further review. Decisions about whether to prosecute or drop a case are for the Justice Department, and Sullivan has “no authority” to reject the executive branch’s decision in the matter, the government argued.

“The district court plans to subject the executive’s enforcement decision to extensive judicial inquiry, scrutiny, oversight and involvement,” said the Justice Department brief, which was signed by the solicitor general, Noel J. Francisco, and other officials.

Flynn had twice pleaded guilty to lying to the FBI in January 2017 about his conversations with the Russian ambassador. the previous month, during the transition period after Trump won the election. His plea was part of a deal with prosecutors to also resolve liability for failing to register as a paid foreign agent of Turkey in 2016 and then signing forms where he lied about that work.

But last month, Attorney General William Barr directed the Justice Department to drop the case against Flynn, putting forward a theory that his lies to the FBI were immaterial to any legitimate investigation.