WASHINGTON – Michael Flynn is asking a federal appeals court to force the dismissal of his case and to assign him to a different judge, saying the one who’s been overseeing it has abused his discretion.
Flynn’s attorneys on Tuesday asked the U.S. Court of Appeals for the D.C. Circuit to order U.S. District Judge Emmet Sullivan to dismiss Flynn’s case, as prosecutors have requested. They took special issue with Sullivan’s appointment of a retired judge to challenge the Justice Department’s move to abandon the prosecution and to examine whether the former Army general committed perjury for declaring his innocence from a crime he had earlier admitted.
“The district court has no authority to adopt the role of prosecutor or change the issues in the case by inviting or appointing (a representative) to perform the investigation or prosecution that the court deems appropriate,” Flynn’s lawyers argued. “The district court order appointing an amicus is both unauthorized and bespeaks a disturbing lack of appreciation of the court’s limited role when confronted with a motion to dismiss by the government in a criminal case.”
The appeal is the latest escalation in what has become a confrontational and long-standing criminal case of President Donald Trump’s former national security adviser. Flynn, one of half a dozen Trump campaign aides and allies who were prosecuted as a result of the special counsel Russia investigation, pleaded guilty in 2017 to lying to the FBI about his communications with a former Russian ambassador. He later reversed course, accusing Justice Department officials of trapping him into making false statements and not disclosing evidence that would’ve exonerated him.
The Justice Department under Attorney General William Barr, who has tapped an outside prosecutor to review Flynn’s case, later announced its intention to abandon the prosecution. The department said the January 2017 interview during which Flynn made false statements to the FBI was “unjustified.” The interview did not have “a legitimate investigative basis,” making Flynn’s statements irrelevant “even if untrue,” the department argued.
Instead of granting the dismissal, Sullivan appointed retired federal judge John Gleeson to argue against dropping the case and to assess whether Flynn should be held in contempt for perjury.
Flynn’s attorneys said Sullivan did not have the authority to appoint a third party. They also said the judge can’t deny the motion to dismiss the case, saying the Justice Department has “sole authority” to drop its prosecution.
“The district judge’s orders reveal his plan to continue the case indefinitely, rubbing salt in General Flynn’s open wound from the Government’s misconduct and threatening him with criminal contempt,” the attorneys wrote.
The attorneys escalated attacks on Sullivan, calling him “an umpire” who wants “to steal public attention from the players.” They revived the judge’s blistering rebuke of the former Army general during a 2018 sentencing hearing to make the case that Sullivan isn’t impartial toward Flynn.
“Arguably you sold your country out,” Sullivan told Flynn during the hearing that was later postponed.
They also attacked Gleeson, suggesting that the appointed amicus had already signaled his bias against Flynn in a Washington Post op-ed published soon after prosecutors announced their intent to drop the case. Flynn’s attorneys said Gleeson’s article “excoriated” the government’s position when it suggested that it sought to make Sullivan “a party to corruption.”
“The government has amply supported its assertions with documents appended to its motion,” Flynn’s lawyers argued. “Nothing in the record casts doubt on the Government’s reasons for moving to dismiss.”
In the op-ed, which Gleeson co-authored with two other former Justice Department officials, the retired judge said the effort to dismiss Flynn’s case “reeks of improper political influence.” The article also asserted that Sullivan has an obligation to scrutize the government’s attempt to drop the case, quoting the Supreme Court: “The waters of justice are not polluted.”