Flynn Asks DC Circuit to Force Dismissal of Criminal Case

The former national security adviser twice pleaded guilty to lying to the FBI about his contacts with a Russian ambassador but moved to withdraw the plea in January.

Michael Flynn, President Donald Trump’s former national security adviser, leaves federal court in Washington on Sept. 10, 2019. (AP Photo/Manuel Balce Ceneta)

WASHINGTON (CN) — Michael Flynn asked the D.C. Circuit on Tuesday to come down on the federal judge pushing back against the shocking move by Attorney General William Barr to drop the case against the former national security adviser.

Flynn’s attorneys accuse U.S. District Judge Emmet Sullivan of harboring bias against their client and dragging the Washington federal court into a political hurricane in the middle of an election year. 

They argue the judge should have granted the Justice Department’s motion to dismiss the case after new government records surfaced that the defense claims are “stunning evidence” of their client’s innocence.

“The egregious government misconduct, and the three-year abuse of General Flynn and his family, cry out for ending this ordeal immediately and permanently. The district judge’s orders reveal his plan to continue the case indefinitely, rubbing salt in General Flynn’s open wound from the government’s misconduct and threatening him with criminal contempt,” attorney Sidney Powell and her colleagues wrote. 

The petition requests the appeals court order Judge Sullivan to immediately grant the motion to dismiss, vacate his order appointing a retired judge to argue against the motion and reassign the case to a different district judge to bring it to a close.

Flynn has twice pleaded guilty to lying to the FBI in a 2017 interview about his conversations with Russian ambassador Sergey Kislyak on U.S. sanctions imposed by the Obama White House over 2016 election interference. But he moved to withdraw his guilty plea in January, alleging “egregious government misconduct.”

“Through no fault of his own,” the petition made public Tuesday argues, Flynn “has been drawn into a Kafkaesque nightmare that is a cross between The Trial and In the Penal Colony,” referring to stories by German writer Franz Kafka.

Last week, Sullivan appointed John Gleeson, formerly a U.S. district judge for the Eastern District of New York and chief of the criminal division in the U.S. attorney’s office for the district, to advise him on whether to grant the government’s motion to dismiss and address whether Flynn should be held in criminal contempt for perjury. 

The judge’s actions, the defense now claims, are evidence that he is not only biased toward Flynn, “but also revels in the notoriety he has created by failing to take the simple step of granting a motion he has no authority to deny.” 

“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,” Powell wrote. 

Flynn’s attorneys are asking the D.C. Circuit to decide whether Sullivan abused his authority and disregarded the separation of powers “that invests the power to prosecute solely in the executive branch.” 

Senate Majority Leader Mitch McConnell, R-Ky., echoed that accusation from the chamber floor Tuesday. 

“The judge has taken it upon himself to go browsing for other hostile parties. Obviously that subverts our constitutional order in which the executive alone decides whether to prosecute cases,” McConnell said. 

Conceding that there is a limited role for the court to play when it appears the parties involved in a case are evading statutory constraints, the defense team argues that is not the case here. 

“Moreover, the district court must be mindful that ‘the presumption of regularity’ applies to ‘prosecutorial decisions and, in the absence of clear evidence to the contrary, courts presume that [prosecutors] have properly discharged their official duties,’” Powell wrote. 

Sullivan has not stated publicly where he stands on the government’s motion to dismiss, though his recent court orders appear to reflect suspicion about the startling reversal.

However, the judge is widely known to have told Flynn in open court: “Arguably, you sold your country out.” On Tuesday, the defense took a swing at the judge for that comment made in 2018, claiming it reveals a “personal disgust” toward their client. 

“Even uttered in a private conversation, such words would be cause for recusal, but to say them to the world does, indeed, evince ‘deep-seated … antagonism that would make fair judgment impossible,’” the petition states.  

Two days before Sullivan pulled him onto the case, Gleeson had called on the judge to take a closer look at the shocking move by the Justice Department. 

The record “reeks of improper political influence,” the retired judge wrote in the Washington Post, a concern shared by thousands of former government attorneys crying foul play. 

Over 2,000 former Justice Department officials have called on Barr to resign. They warn the motion to dismiss Flynn’s case amounts to the nation’s top law enforcement official interfering in a criminal prosecution to reap political gains for President Donald Trump. 

“Make no mistake: The department’s action is extraordinarily rare, if not unprecedented. If any of us, or anyone reading this statement who is not a friend of the president, were to lie to federal investigators in the course of a properly predicated counterintelligence investigation, and admit we did so under oath, we would be prosecuted for it,” their letter states.

The president has praised Flynn as an innocent man and accused Obama-era officials of targeting the incoming Trump administration, a conspiracy now circulating as “Obamagate.”

Barr has claimed that the Justice Department’s standards were undermined by the previous administration. 

“We saw two different standards of justice emerge: One that applied to President Trump and his associates, and the other that applied to everybody else,” the attorney general said during a virtual news conference Monday. “We can’t allow this ever to happen again.”

It remains unclear how the D.C. Circuit will respond to Flynn skipping rungs on the judicial ladder. If a three-judge panel denies his petition, the former Trump adviser could seek a rehearing before the full appeals court or turn to the Supreme Court for an emergency order. 

The D.C. Circuit is a majority Democrat-appointed court with just four Republican-appointed judges, including two Trump appointees who typically recuse themselves on matters involving the White House. 

Prior to Flynn filing the petition for writ of mandamus, Sullivan set a briefing schedule that draws the case into the summer, with oral arguments set for July 16. The path to adjudicate the motion to dismiss drags out the embroiled case with the potential to still be in proceedings when Election Day rolls around.

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