‘That’s Not True and You Know It,’ Federal Judge Tells DOJ Lawyer in Flynn Matter

Screenshot of a remote D.C. Circuit hearing held Tuesday on the government’s bid to dismiss its prosecution of former national security adviser Michael Flynn.

WASHINGTON (CN) — The en banc D.C. Circuit showed little patience Tuesday for the lawyer fighting to get Michael Flynn’s prosecution dismissed without a study of the government’s motives.

Sidney Powell, who is representing the former national security adviser, drew pushback this morning by multiple members of the bench by asserting that the role of a judge is a “ministerial” one. 

“It’s not and you know it’s not,” interjected U.S. Circuit Judge Thomas Griffith, an appointee of President George W. Bush, who said such a designation would reduce the judiciary to a “rubber stamp.”

U.S. Circuit Judge Cornelia Pillard echoed that sentiment, saying it was the core of a judge’s job to evaluate the strongest arguments from both sides of a case.

Flynn’s appeal comes before the court after he pleaded guilty — twice — to lying to the FBI during its investigation of Russia’s interference in the 2016 U.S. election and the Trump campaign’s suspected coordination of those efforts.

Twice under oath, Flynn denied that Russian Ambassador Sergey Kislyak contacted him in 2016 regarding the Kremlin’s concern over sanctions that had been put in place by the outgoing President Barack Obama.

After the disgraced general withdrew his guilty plea, however, Trump’s Justice Department announced it no longer considered Flynn’s statements to the FBI to have been “materially” false.

Flynn and the government say the decision to dismiss the prosecution is not reviewable — a position that a divided three-judge panel of the D.C. Circuit embraced in June.

Signed by Trump-appointed U.S. Circuit Judge Neomi Rao, the ruling ordered U.S. District Judge Emmet Sullivan to dismiss the case without review. That decision is now without force now, however, with the court electing to reconsider the matter en banc.

At Tuesday’s hearing, held remotely before a 10-judge panel, the Obama-appointed Pillard summarized Flynn’s argument as one where the judiciary is restrained. 

“Your position is ‘no,’ he can’t hear both sides from the law,” Pillard told Powell, referring to Sullivan. “He has to drop the case like a hot potato without adversary closing argument.”

Acting U.S. Solicitor General Jeffrey Wall told the court that the government is authorized to dismiss Flynn’s prosecution based on the secret findings of an investigation ordered by Attorney General William Barr.

“I just wanted to make clear that it may be possible the attorney general has before him information that he was not able to share with the court and so what we put forth were the reasons we could, but it may not be the whole picture available to the executive branch,” Wall said. 

When he has appeared before the Senate for testimony, the attorney general has regularly said Flynn’s case has been tied up, at least in part, in a larger Crossfire Hurricane investigation into the origins of the Russia probe spearheaded by U.S. Attorney John Durham.

Beth Wilkinson, who represents Judge Sullivan in the matter, tried to soothe the panel’s concerns that the hearing Sullivan is seeking would be a broad, unruly affair that could involve requests for new evidence collection or new affidavits. 

“He has not suggested anything other than lawyers will argue motions, there would be follow-up questions and then a decision would be made,” she said.

When Judge Rao questioned at the hearing whether Sullivan should be recused, the acting solicitor general argued that would be appropriate given Sullivan’s “appearance of impartiality.”

Flynn’s attorney painted Sullivan with a similar brush, saying his handling of the case discarded “any semblance of the unbiased impartial adjudicator.”

U.S. Circuit Judge Merrick Garland pressed Powell with a hypothetical.

“If all the district court had done was to ask Flynn to brief the arguments on the separation of powers and permitted an amicus filing but did not appoint amicus, would you still argue against it?”

“I think I still would,” Powell noted. 

After the government moved to dismiss Flynn’s prosecution, Sullivan appointed John Gleeson, a former Eastern District of New York federal judge, to argue against the Justice Department’s request as an amicus curiae.

Now an attorney at Debevoise & Plimpton, Gleeson was appointed to the bench by President Bill Clinton, as was Sullivan.

Tuesday’s hearing ran for almost four hours. If the dismissal doesn’t go Flynn’s way, he could opt to take the traditional route and appeal. That could take months to resolve. But the options are similar even if Judge Sullivan does decide to keep the case alive. While the next step would be sentencing, it is all but certain that after a saga that has dragged in the courts for four years, Flynn would appeal again.

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