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
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,
"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
"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
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
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
"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.