Power strug­gle over Flynn case con­tin­ues

Ap­peals court seems re­luc­tant to or­der dis­missal

Orlando Sentinel - - Nation & World - By Eric Tucker

WASH­ING­TON — A fed­eral ap­peals court ap­pears skep­ti­cal of ar­gu­ments that it should or­der the dis­missal of the crim­i­nal case against for­mer Trump ad­min­is­tra­tion na­tional se­cu­rity ad­viser Michael Flynn de­spite a Jus­tice De­part­ment bid to aban­don the pros­e­cu­tion.

Two of the three judges on the panel re­peat­edly sig­naled dur­ing ar­gu­ments Fri­day that they were in­clined to re­main out of the fray and to in­stead per­mit U.S. Dis­trict Judge Em­met Sul­li­van to eval­u­ate on his own the de­part­ment’s un­usual dis­missal re­quest. The pointed ques­tion­ing sug­gested that the tus­sle over Flynn’s fate is likely to con­tinue un­til at least next month, when Sul­li­van has sched­uled a hear­ing in the case.

“There’s noth­ing wrong with him hold­ing a hear­ing as far as I know,” said Judge Karen LeCraft Hen­der­son, a nom­i­nee of for­mer Pres­i­dent Ge­orge H.W. Bush.

With the ar­gu­ments, the court waded into a power strug­gle between two branches of gov­ern­ment as it weighed what role the ju­di­ciary should play when the Jus­tice De­part­ment wants to dis­miss one of its own cases. It’s not only an im­por­tant le­gal ques­tion but a po­lit­i­cal one, too, given Pres­i­dent Don­ald Trump’s own per­sonal in­ter­est in the case and the po­ten­tial to undo one of the sig­na­ture pros­e­cu­tions from spe­cial coun­sel Robert Mueller’s Rus­sia in­ves­ti­ga­tion.

The de­part­ment last month moved to dis­miss its case against Flynn, who pleaded guilty as part of Mueller’s in­ves­ti­ga­tion to ly­ing to the FBI about his con­tacts with the Rus­sian am­bas­sador dur­ing the pres­i­den­tial tran­si­tion pe­riod.

Jus­tice De­part­ment of­fi­cials say they’ve con­cluded that Flynn’s in­ter­ac­tions with the diplo­mat, in which the men dis­cussed sanctions im­posed on Rus­sia for elec­tion in­ter­fer­ence, were ap­pro­pri­ate and that there was in­suf­fi­cient ba­sis for the FBI to in­ter­view him.

But rather than im­me­di­ately dis­miss the case, Sul­li­van ap­pointed a re­tired fed­eral judge to ar­gue against the Jus­tice De­part­ment’s po­si­tion and to con­sider whether Flynn — who pre­vi­ously ad­mit­ted guilt but now as­serts his in­no­cence — should be held in crim­i­nal con­tempt for per­jury. That ex-judge, John Glee­son, said in a fil­ing this week that the move to dis­miss the case amounted to an abuse of power.

The dis­missal mo­tion is one in a se­ries of steps At­tor­ney Gen­eral Wil­liam Barr has taken to scru­ti­nize the Rus­sia in­ves­ti­ga­tion and de­ci­sions made by both sub­or­di­nates and pre­de­ces­sors at the Jus­tice De­part­ment.

The fo­cus Fri­day was not on the mer­its of the Jus­tice De­part­ment’s po­si­tion but rather on whether Flynn’s at­tor­neys could by­pass Sul­li­van and go straight to the ap­peals court to force him to dis­miss the case.

Flynn’s lawyer, Sid­ney Pow­ell, told the court there was no role for the judge to play now that pros­e­cu­tors have aban­doned their pur­suit of Flynn. She said Sul­li­van had no au­thor­ity to do any­thing fur­ther.

Deputy Solic­i­tor Gen­eral Jeffrey Wall, ar­gu­ing on be­half of the Jus­tice De­part­ment,

said Sul­li­van should not be per­mit­ted to un­der­take an “in­tru­sive, fact-in­ten­sive in­quiry” to sec­ond-guess the de­part­ment’s ac­tions. He balked at the idea that the gov­ern­ment should have to de­fend it­self, in a “politi­cized en­vi­ron­ment,” against ar­gu­ments from Glee­son that he said im­pugn the in­tegrity of Barr and the Jus­tice De­part­ment.

“This has al­ready be­come, and I think is only be­com­ing more of, a pub­lic spec­ta­cle,” Wall said.

The court ap­peared skep­ti­cal of ar­gu­ments from lawyers for both Flynn and the gov­ern­ment.

Judge Robert Wilkins, an ap­pointee of for­mer Pres­i­dent Barack Obama, asked why Sul­li­van was not em­pow­ered to con­duct an in­de­pen­dent eval­u­a­tion of the case and the de­part­ment’s new po­si­tion.

And Hen­der­son said Flynn’s at­tor­neys were seek­ing a “dras­tic rem­edy” in urg­ing the ap­peals court to weigh in be­fore Sul­li­van has had a chance to, es­pe­cially since Sul­li­van may ul­ti­mately re­ject Glee­son’s po­si­tion and de­cide in fa­vor of the Jus­tice De­part­ment.

“I don’t see why we don’t ob­serve reg­u­lar or­der and al­low him to rule,” Hen­der­son said.

Sul­li­van’s lawyer, Beth Wilkin­son, faced mul­ti­ple ques­tions from the third judge on the panel, Trump ap­pointee Neomi Rao, who asked whether Sul­li­van was cre­at­ing a con­tro­versy where none ex­isted by dis­count­ing the wishes of both Flynn and the Jus­tice De­part­ment to dis­miss the case.

Wilkin­son said Sul­li­van had not made up his mind and that there was no rea­son to be­lieve at this point that he would def­i­nitely re­ject the Jus­tice De­part­ment’s dis­missal mo­tion. She said the judge sim­ply wanted in­put from all sides.

“He is con­sid­er­ing the gov­ern­ment’s mo­tion and re­ceiv­ing brief­ings from all the par­ties,” she said.

CAROLYN KASTER/AP 2017

Then-na­tional se­cu­rity ad­viser Michael Flynn speaks dur­ing a brief­ing at the White House. An ap­peals court seems skep­ti­cal it should or­der the dis­missal of the case against Flynn.

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