Flynn attorney, DOJ face skeptical appeals court
WASHINGTON – Michael Flynn’s efforts to force an end to the criminal case against him faced a skeptical appeals court Tuesday, as judges questioned whether the presiding judge overstepped his authority when he refused to immediately dismiss the case.
At issue is whether U.S. District Judge Emmet Sullivan abused his discretion when he appointed a third party, known as an amicus, to challenge the Justice Department’s bid to drop its prosecution of President Donald Trump’s former national security adviser.
Many of the appeals court judges, several of whom were appointed by Democratic presidents, seemed sympathetic to Sullivan’s claims that he’s entitled to hear a challenge to the Justice Department’s motion to dismiss before ruling on it. D.C. Circuit Court Judge Thomas Griffith, one of the only three judges on the panel who were appointed by Republican presidents, rejected the notion that a judge’s role is merely ministerial.
“It’s not ministerial. You know it’s not. The judge is not simply a rubber stamp,” Griffith told Flynn’s attorney, Sidney Powell. “Aren’t you just arguing about what the judge must do to educate himself or herself (to be able to make a ruling)?”
Powell argued that because the Justice Department had decided it no longer wanted to prosecute Flynn, Sullivan’s only role is to promptly grant dismissal, but he has, instead, appointed an amicus to “usurp” the role of prosecutors. Sullivan’s actions have created an “unconstitutional” process that lacks any semblance of impartiality, and he has “so invested himself ” for the purpose of prosecuting Flynn, Powell argued.
But D.C. Circuit Court Judge Cornelia Pillard seemed skeptical that Sullivan can only grant dismissal. “Your position is, ‘No he can’t hear both sides of the law. He has to drop the case like a hot potato?’”
The hearing, which lasted nearly four hours, is the latest in Flynn’s tangled criminal and political saga. The nearly 4-year-old case has now led to an unusual legal battle in the federal appeals court in Washington, D.C., where both Flynn and the Justice Department sought to dismiss the case, while Sullivan – himself represented by an attorney – argued he’s entitled to scrutinize the government’s motives.
Flynn pleaded guilty in 2017 to lying to the FBI about his communications with a former Russian ambassador, but later reversed course, claiming investigators entrapped him into making false statements. The Justice Department, too, reversed course, and sought to dismiss the case, arguing the interview during which Flynn made false statements was “unjustified.”
Instead of dismissing the case, Sullivan appointed a retired federal judge to challenge the Justice Department’s motion to dismiss and to determine whether Flynn had committed perjury for claiming he is innocent of a crime to which he had previously pleaded guilty.
In a 2-1 decision in June, an appeals court panel ruled in favor of Flynn and the Justice Department and ordered Sullivan to dismiss the case. The panel ruled that Sullivan’s actions intruded on the Justice Department’s prosecutorial powers. The full appeals court, in a rare move, granted Sullivan’s request to rehear the case.
During the hearing, acting Solicitor General Jeff Wall argued that Sullivan’s decision to request a rehearing has created an appearance that he can’t be impartial.