Flynn urges court not to rehear case

Filing: Prosecution ‘hijacked’ by judge

WASHINGTON — Attorneys for Michael Flynn on Monday urged a full federal appeals court in Washington not to rehear his case, arguing that an earlier order requiring a U.S. judge to dismiss the prosecution should stand.

In a 19-page filing, the defense for President Donald Trump’s former national security adviser again criticized U.S. District Judge Emmet Sullivan of Washington for seeking to hold a hearing into whether the Justice Department’s May request to undo Flynn’s guilty plea is in the public interest.

“The district court has hijacked and extended a criminal prosecution for almost three months for its own purposes,” Flynn attorneys Sidney Powell and Jesse Binnall wrote in an argument to judges on what is often called the country’s second-most-powerful court.

The attorneys said Sullivan’s request for a full U.S. Court of Appeals for the D.C. Circuit rehearing to defend his move was unprecedented and “rife with errors and misrepresentations.”

“To allow Judge Sullivan to delay and generate litigation against a criminal defendant is unconstitutional,” they added, because the “Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.’”

Sullivan on July 11 requested a rehearing after a divided three-judge panel ordered him to dismiss the prosecution and said he was wrong to appoint a retired federal judge to argue against the government after it abandoned its adversarial role.

Sullivan’s attorneys argued that the panel majority’s opinion marked a “dramatic break from precedent” that “threatens to turn ordinary judicial process upside down” by shutting down a trial judge’s review of pending motions before he has rendered a decision.

“It is the district court’s job to consider and rule on pending motions, even ones that seem straightforward,” wrote Sullivan’s attorneys, led by Beth Wilkinson. “This Court, if called upon, reviews those decisions — it does not preempt them.”

In a 2-1 ruling against Sullivan in late June, appellate Judge Neomi Rao, a recent Trump appointee, wrote that Sullivan overstepped his role and committed a “clear legal error” by refusing to immediately close the case and appointing former federal judge John Gleeson to act as the court’s amicus counsel.

The panel wrote that Sullivan could not “scrutinize the reasoning and motives of the Department of Justice” in dropping Flynn’s prosecution and that prolonging the case would “constitute irreparable harms that cannot be remedied on appeal.”

But Sullivan’s filing said that Rao’s opinion rushed to judgment. He cited precedents stating the government can dismiss a case only with the permission or “leave” of a trial court, and that appeals courts weigh in after lower judges rule, not before. Sullivan said the panel also improperly relied on arguments not raised before him and erroneously gave the government relief — ordering him to approve the Justice Department’s motion — even though it was only Flynn who petitioned the appeals court.

“Any one” of these flaws weaken the legal standard usually required for a writ of mandamus — that no other remedy is available — the type of extraordinary relief Flynn sought to shortcut the regular appeals process, Sullivan’s team argued.

The alternative threatens “to turn mandamus into an ordinary litigation tool,” inviting “forum shopping” by parties to bypass trial judges, according to Sullivan’s team.

Flynn, 61, awaits sentencing after pleading guilty in December 2017 to lying in an FBI interview on Jan. 24, 2017, to conceal conversations with then-Ambassador Sergey Kislyak of Russia shortly before Trump took office.

Although Flynn pleaded guilty and cooperated in the investigation by then-special counsel Robert Mueller, he reversed course after Mueller’s investigation ended and Attorney General William Barr took office in 2019.