Federal Judge Defends Refusal to Dismiss Flynn Charge

WASHINGTON (CN) — The judge overseeing Michael Flynn’s criminal case is arguing tough debate yields just results, in his first counter to the former national security adviser petitioning the D.C. Circuit to force the lower court to dismiss the prosecution. 

“Because our judicial system is premised on the notion that adversarial presentation of the issues leads to better decisions, and because no decisions have yet been made, the court should holster the ‘potent weapon[]’ of mandamus,” top trial attorney Beth Wilkinson wrote Monday, on behalf of U.S. District Judge Emmet Sullivan, in response to Flynn’s mandamus petition.

U.S. District Judge Emmet Sullivan. (Photo via U.S. District Court for the District of Columbia)

The Justice Department abruptly moved to drop the false-statement charge against Flynn last month after three years of prosecuting the case. The defendant had pleaded guilty twice, before withdrawing the plea under allegations of misconduct by federal investigators. 

In Sullivan’s response filed Monday, Wilkinson wrote the turn of events is both “unusual” and “unprecedented.” The attorney urged the D.C. Circuit to reject Flynn’s petition to force Sullivan to grant the government’s motion to dismiss and to assign a new judge to wind down the case. 

“Mr. Flynn’s case has garnered considerable attention,” she wrote. “But that is no reason to resolve it outside the normal judicial process. This is a ‘court of review, not of first view.’”

Amid cries of political interference on the part of Attorney General William Barr to intercede on behalf of a close associate of the president, Sullivan has assigned a retired federal judge to argue against the government’s motion, and opened the door for outside parties to weigh in

The Bill Clinton appointee also tasked John Gleeson, who presided as a judge in the Eastern District of New York after serving in the U.S. Attorney’s Office in the same district, with addressing whether Flynn should be held in criminal contempt for lying about false statements he previously admitted to in open court.

Comparing Gleeson’s appointment to that of a special prosecutor, Sullivan’s attorney stressed that the judiciary cannot be at the mercy of another branch of government to decide whether to launch into contempt proceedings. 

“Judge Sullivan’s amicus order is more restrained: It does not appoint Judge Gleeson to prosecute any contempt charge, but merely to address whether initiating a contempt proceeding here would be appropriate, and gives Mr. Flynn the last word on the question,” Wilkinson wrote. 

While a contempt finding or sanction against Flynn may prove uncalled for, the defendant’s reversals under oath “raise questions that any judge should take seriously,” the attorney further argued. 

The Justice Department filed its own response Monday shortly after Sullivan’s filing, arguing the judge has strayed from the authority invested in him. 

“The district court plans to subject the executive’s enforcement decision to extensive judicial inquiry, scrutiny, oversight, and involvement. Under the Supreme Court’s and this court’s precedents, it is clear and indisputable that the district court has no authority to embark on that course,” Assistant U.S. Attorney Jocelyn Ballantine wrote. 

Urging the D.C. Circuit to grant Flynn’s petition, the government wrote Monday that the separation-of-powers problem worsens if Gleeson, acting as the court-appointed amicus, “has his way” with evidentiary proceedings.

But with a spotlight on then-interim U.S. Attorney Timothy Shea signing off on the motion to dismiss, Sullivan’s response argues the judge must take up the unique facts of the case before it gains ground in the court of appeals. 

“It is unusual for a criminal defendant to claim innocence and move to withdraw his guilty plea after repeatedly swearing under oath that he committed the crime,” Wilkinson wrote. 

“It is unprecedented,” she continued, “for an Acting U.S. Attorney to contradict the solemn representations that career prosecutors made time and again, and undermine the district court’s legal and factual findings, in moving on his own to dismiss the charge years after two different federal judges accepted the defendant’s plea.” 

Monday’s filing notes Sullivan provided Flynn ample time when he pleaded guilty the second time around to consult with his attorneys, and maps out the defendant confirming under oath that he understood that he was giving up “forever” his right to challenge the 2017 FBI interview at the heart of the case. 

Transcripts of calls Flynn made in December 2016 to Russia’s then-ambassador to the United States that the defendant originally pleaded guilty to lying about in the FBI interview surfaced last Friday.

Flynn had told investigators that he did not ask the diplomat, Sergey Kislyak, to refrain from escalating the political situation heating up after the Obama White House sanctioned Russia in response to election interference. 

But the call records now show Flynn, as a private citizen just weeks before President Donald Trump’s inauguration, telling Kislyak to keep things “even-keeled” after the ambassador raised concerns specifically over the sanctions. 

Now relying on records brought to light by Eastern District of Missouri U.S. Attorney Jeff Jensen, tapped by Barr to investigate the prosecution, Flynn’s attorneys claim their client was cornered into a perjury trap.

“This is an umpire who has decided to steal public attention from the players and focus it on himself. He wants to pitch, bat, run bases, and play shortstop. In truth, he is way out in left field,” Flynn’s attorney Sidney Powell wrote in the mandamus petition.  

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