WASHINGTON (CN) — Michael Flynn’s bid to end his prosecution, going around a federal judge to secure the recommendation of Trump’s Justice Department, appeared unlikely Friday to win D.C. Circuit approval.
“I don’t see why we don’t observe regular order and allow him to rule,” said U.S. Circuit Judge Karen Henderson, one of three members of a panel who presided over the former national security adviser’s hearing this morning via teleconference.
Henderson was referring to U.S. District Judge Emmet Sullivan, whose hand Flynn hopes to force as he awaits a ruling on whether the Justice Department can dismiss his prosecution for lying to the FBI, as it requested to do last month.
Rather than immediately grant the motion, Sullivan has set a hearing for July where he will hear arguments against the government from retired judge John Gleeson, whom the court appointed as amicus curiae.
“Granted he may have chosen an intemperate amicus, but that doesn’t mean that he is going to deny this motion,” said Henderson, a George H. W. Bush appointee who was the senior judge on Friday’s panel.
The Justice Department, which now contends that the lies Flynn already pleaded guilty to were not materially false, saw resistance at Friday’s hearing from U.S. Circuit Judge Robert Wilkins.
An Obama-appointed judge, Wilkins questioned why the government did not file its own petition rather than climb on board with Flynn.
Principal Deputy Solicitor General Jeffrey Wall said that if that was a concern, the appeals court could grant the government leave to file its own petition, to which Wilkins replied: “That’s far from regular order.”
Repeatedly at the hearing, Wall warned that Sullivan risks injecting the judiciary into a political skirmish by continuing to adjudicate the matter.
“Courts were not supposed to go down this road,” the deputy solicitor general said.
Judge Henderson denied that Sullivan has taken extraordinary measures, however, adding the presiding judge is “not a rubber stamp.”
Representing Flynn meanwhile, attorney Sidney Powell called Sullivan’s amicus appointment of Gleeson unprecedented in a criminal case.
Her argument picked up support from the third member of the panel, Trump-appointed U.S. Circuit Judge Neomi Rao.
“Who is the amicus representing here?” Rao asked, before drilling the high-profile trial lawyer representing Sullivan, Beth Wilkinson, on the court-appointed expert, retired Eastern District of New York Judge Gleeson.
“Isn’t the appointment of an amicus creating an Article III case or controversy where there isn’t one?” Rao asked.
The question closely reflected Powell’s earlier argument that Sullivan had “created his own issues that he wants to investigate,” though they have nothing to do with the motion to dismiss.
But Wilkinson said that there is no suggestion that Sullivan plans to call witnesses or roll out any of the “parade of horribles” that the government envisions.
“All this court is doing is getting advice,” Sullivan’s attorney said.
Claiming there is “extraordinary exculpatory evidence” of government misconduct in Flynn’s prosecution, defense attorney Powell accused Sullivan of embarking on an “impermissible intrusion” on executive branch powers.
“The government has quit and it’s time to leave the field,” Powell said.
While Powell argued there is no matter left to be resolved in the case, Wilkins pointed out that the Supreme Court, in Thompson v. U.S., left it up to the appeals court to decide the scope of jurisdiction based on case and controversy.
In response, Powell launched into claims that FBI agents made up evidence about her client, leading to an “appalling suppression of exculpatory evidence” only recently unearthed by a prosecutor tapped by Attorney General William Barr to investigate.
“It’s a travesty of justice that this man has been dragged through this for three years on the case that was absolutely concocted by FBI agents, with some help from the Department of Justice, and evidence falsified and everything else,” Powell said.
The Justice Department put its focus on interbranch conflict.
“It isn’t to the courts to police whether the executive has pure or impure motives, the remedies for those occur in political and public arenas,” Wall said, adding those remedies include dismissal of corrupt executive officials, or impeachment.
Gleeson, the court-appointed expert, argued in a brief Wednesday that Attorney General Barr had overseen “highly irregular conduct to benefit a political ally of the president.”
If the appeals court allows Sullivan to dig into concerns raised over the motion to dismiss, including that career prosecutors did not sign off on the turnaround, the government will have to publicly answer to those allegations in a politicized environment, Wall said.
The Justice Department attorney argued that without clear evidence of unconstitutional motives Sullivan has no reason to deny the motion to dismiss, and left the appeals court to consider that the case: “is threatening to become and will become the sort of public spectacle that I think mandamus is warranted to foreclose at this point.”
But Henderson continuously praised Sullivan as an experienced and excellent trial judge, calling him “an old hand.”
“For all we know, by the end of July, he will have granted the motion,” Henderson said at the hearing.