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Court Wary of Dismissing Flynn Case    08/12 06:41

   A federal appeals court in Washington appeared inclined Tuesday to let a 
judge decide on his own whether to grant the Justice Department's request to 
dismiss the criminal case against former Trump administration national security 
adviser Michael Flynn.

   WASHINGTON (AP) -- A federal appeals court in Washington appeared inclined 
Tuesday to let a judge decide on his own whether to grant the Justice 
Department's request to dismiss the criminal case against former Trump 
administration national security adviser Michael Flynn.

   Many members of the court expressed repeated skepticism at arguments from 
the Justice Department and Flynn's attorneys that a judge was not empowered to 
probe the motives behind the government's decision to abandon the prosecution 
of Flynn, who pleaded guilty as part of the special counsel's Russia 
investigation to lying to the FBI.

   The nearly four hours of arguments were the latest step in a long-running 
legal saga that has prompted an extraordinary power struggle between the 
executive and judicial branches. The case will almost certainly persist for 
months if the court rejects Flynn's efforts to get a speedy dismissal and 
returns it to U.S. District Judge Emmet Sullivan, who refused to immediately 
grant the department's request to drop the prosecution.

   The court is not deciding whether the case should be dismissed or whether 
the Justice Department had good reason to move to drop it in May despite 
Flynn's own guilty plea. Instead, the question is a more procedural one: 
whether Flynn's attorney is entitled to leapfrog Sullivan and get an order from 
the appeals court forcing the judge to dismiss the prosecution before Sullivan 
himself has had a chance to rule.

   A ruling against Flynn would not undo his guilty plea or end the case but 
simply return it to Sullivan for a hearing on the government's request to 
dismiss.

   The entire court took up the matter after a three-judge panel, in a 2-1 
ruling in June, ordered Sullivan to dismiss the case. Several of the judges 
made clear through their questioning that they were deeply skeptical of 
arguments that Sullivan was not entitled to scrutinize the department's 
decision and second-guess the motives behind it.

   Judge Thomas Griffith, an appointee of President George W. Bush, bristled 
when Flynn's lawyer, Sidney Powell, characterized as "pretty ministerial" the 
role of a judge when the government and the defendant both agree that a case 
should be dismissed.

   "It's not ministerial and you know it's not," Griffith said. "So it's not 
ministerial, so that means that the judge has to do some thinking about it, 
right?"

   "The judge," he added, "is not a rubber stamp."

   Judge Cornelia Pillard, an appointee of President Barack Obama, said that 
though the Justice Department is generally entitled to deference, "the 
integrity and independence of the court" must also be respected.

   She told Jeffrey Wall, the acting solicitor general, that by urging Sullivan 
to dismiss the case, it was asking him to contradict an action he had taken 
nearly two years ago when he accepted Flynn's guilty plea at the urging of the 
Justice Department.

   "He previously got on board," Pillard said of Sullivan, "and you're saying, 
'actually, never mind.'"

   "What self-respecting ... judge would simply jump and enter an order without 
doing what he could do to understand both sides?" Pillard asked.

   Wall denied that the Justice Department was asking Sullivan to contradict 
anything he had done earlier, but rather to simply recognize that the 
government no longer wants to pursue the case. He said just as the Justice 
Department cannot be forced to initiate a prosecution, no matter how 
questionable its motives may be, it also cannot be compelled to continue a 
prosecution that it no longer wants to pursue.

   Wall also suggested that information not yet made public influenced Attorney 
General William Barr's decision to drop the case.

   "It may be possible that the attorney general had before him information 
that he was not able to share with the court, and so what we put in front of 
the court were the reasons that we could, but it may not be the whole picture 
available to the executive branch," Wall said.

   Flynn was the only White House official charged in special counsel Robert 
Mueller's Russia investigation into ties between the Trump campaign and Russia.

   He pleaded guilty to lying to the FBI about having discussed sanctions 
during the presidential transition period with the then-Russian ambassador to 
the United States. Those concerns prompted alarm within the FBI in part because 
White House officials had stated publicly that Flynn and the ambassador had not 
discussed sanctions.

   Flynn was awaiting sentencing when the Justice Department announced in May 
that it was abandoning the case following an internal review.

   That review concluded that the FBI had insufficient basis to question Flynn 
about his conversations with the diplomat, which Barr says were appropriate, 
and that statements he made during the interview were not material to the 
broader counterintelligence investigation into ties between Russia and the 
Trump campaign.

   The lawyers also argued Tuesday about whether Sullivan should be removed 
from any future proceedings in the case because of a perceived bias against 
Flynn. Sullivan appointed a retired federal judge, John Gleeson, to argue 
against the Justice Department's position. Gleeson said the motion to dismiss 
amounted to a gross abuse of power.

   Powell, Flynn's lawyer, accused Sullivan of having usurped his authority and 
argued that he needed to be disqualified from the case because of an appearance 
of bias. Wall, too, said the Justice Department had grown troubled by 
Sullivan's actions.

   "Only the government can decide when to stop a prosecution, and that's the 
authority he is intruding on," Powell said. "He's not entitled to ask any 
questions about that whatsoever."

   Beth Wilkinson, a lawyer for Sullivan, said the judge is simply doing what 
judges do: preparing to rule on a motion.

   "The parties' speculation and fears about what the district court might do 
are not a proper basis" to take the case away from Sullivan, she said. Had the 
hearing been held as scheduled last month, she noted, the case could have 
already been over by now.

 
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