WASHINGTON (CN) — Michael Flynn’s attorney revealed during a court hearing on Tuesday that she spoke directly with President Donald Trump and asked him not to pardon his first national security adviser in the midst of a politically high-strung legal battle.
Flynn’s attorney Sidney Powell was averse to discussing what she said was an in-person meeting with the president, saying she believed the conversation was protected by executive privilege.
But pressed by U.S. District Judge Emmet G. Sullivan, the attorney said she met with Trump and a campaign lawyer in the last few weeks to provide the president with a “brief update on the status of the litigation.”
Powell also said she asked the president to not pardon Flynn. Asked by the judge if she also asked the president to appoint new Justice Department attorneys to the case, she answered, “Oh, heavens no.”
Tuesday’s hearing marked the first time Sullivan, a Clinton appointee, heard arguments on the Trump administration’s motion to dismiss the case against Flynn, who pleaded guilty twice to lying to the FBI.
Keeping the prosecution alive, the D.C. Circuit ultimately rejected Flynn’s plea this summer to force Sullivan to grant the Justice Department’s motion and reassign any closing proceedings to a different judge in the Washington federal court.
A prominent judge on the appeals court emphasized what Sullivan’s own attorney noted in arguments: the district judge may very well sign off on dropping the case.
“In fact, it would be highly unusual if it did not … But if the court denies the motion, General Flynn has multiple avenues of relief that he can pursue,” U.S. Circuit Judge Thomas Griffith, a George W. Bush. appointee who has since retired, wrote in a concurring opinion.
In a hearing that lasted more than four hours Tuesday, Sullivan directed a plethora of questions to both parties and warned against reading into any of them.
“I’m just trying to reach the right decision for the right reasons,” the judge said.
Cautioning Sullivan against acting as a “rubber stamp,” the retired judge appointed by the court to argue against the government called the motion to dismiss an unprecedented action taken on behalf of a close friend and ally of the president.
“If the executive wants to take Michael Flynn off the hook he can pardon him,” John Gleeson, who presided in the Eastern District of New York for more than two decades, argued as amicus curiae.
That constitutionally sound action would not entangle the judiciary in the “desire to scuttle the case” simply because Flynn has close ties to Trump, Gleeson said.
But the Justice Department contended that the court has a “very narrow role to play” by ensuring that the motion to dismiss is “the authoritative position of the executive branch.”
Arguing that Flynn’s false statements to the FBI in 2017 about communications with the then-Russian ambassador are no longer “material,” the government said Tuesday that new evidence uncovered in an investigation commissioned by Attorney General William Barr made clear prosecutors no longer had a case against the former Trump adviser.
Calling the argument that Flynn’s statements were not material to the Crossfire Hurricane investigation into the 2016 Trump campaign’s possible ties to Russia “completely and utterly hollow,” Gleeson argued the government had previously told Sullivan that Flynn’s lies “went to the heart of that inquiry.”
The Justice Department’s materiality claims are unheard of, the amicus further argued, claiming the government would “fight tooth and nail” against them in any other courtroom in America.
“They have been adopted just to help this one defendant,” Gleeson said.
Trump has made prolific public statements on Flynn, denouncing his prosecution as a “witch hunt of historic proportion” and defending the once-close adviser’s innocence, claiming he was “tormented” by “dirty cops” at the FBI.
Sullivan questioned both parties Tuesday on how he should weigh the steady flow of public commentary on the case coming from the White House.
Gleeson argued that the president’s Twitter feed makes clear that he is closely following the case and is personally invested in bringing an end to Flynn’s prosecution.
But Justice Department attorney Hashim M. Mooppan said the decision to drop Flynn’s case was made by Barr, who was not influenced by Trump’s tweets.
He further made the case that the president’s long-running public defense of Flynn does not cross the line of showing corrupt political favoritism within the Justice Department.
“That’s a view about whether this is a just prosecution or an unjust prosecution,” Mooppan said.
Kenneth Clair Kohl, a senior ranking career official in the U.S. Attorney’s Office for the District of Columbia, backed the claim, saying he had not witnessed the alleged corruption involving Flynn’s case.
“I have never seen it in my entire career in our office and it didn’t happen here,” Kohl said.
But the attorney general himself in recent months said that Trump’s tweets “make it impossible to do my job and to assure the courts and the prosecutors in the department that we are doing our work with integrity,” Gleeson argued on rebuttal.
Asked by Sullivan how he should evaluate that the politically appointed U.S. attorney for the District of Columbia, Timothy Shea, and not career prosecutors, signed the motion to dismiss, the Justice Department similarly argued the judge could not give weight to the matter.
Relying on testimony from William Barnett, the veteran FBI agent who handled Flynn’s case, the government also argued senior officials including former FBI Director James Comey pushed the prosecution when analysts expressed concern that it was “a nightmare” and “not a logical investigative step.”
“[Barnett] didn’t raise any alarm bells and he told the special counsel’s office that there was nothing there with respect to Flynn,” Kohn said.
But Gleeson pushed back, saying Barnett was only interviewed last week by DOJ officials and believed Flynn lied to the FBI.
The amicus further shot at claims that FBI officials, like former FBI Deputy Director Andrew McCabe, could not testify against Flynn to support the false testimony charge because they had lied under oath. Gleeson argued transcripts of Flynn’s calls with then-Russian ambassador Sergey Kislyak clearly show the defendant lied to the FBI.
“Does the government really think it couldn’t win that case? Of course it doesn’t,” Gleeson said.
While the government treaded carefully in arguments before Sullivan, Flynn’s attorney came out swinging at the judge.
Powell accused Sullivan – who was the first person in Washington appointed to three judgeships by three different presidents, namely Bill Clinton, George H. W. Bush and Ronald Reagan – of political bias.
She claimed that Sullivan appointed Gleeson to back his own views that Flynn should be sent to prison and permitted the amicus to drag out the politically corrupt investigation into her client.
“It was part of the essential coup to take out President Trump,” Powell said, accusing former Obama-era officials of targeting Flynn to then force out the newly elected president.
In response, the judge said Flynn had sworn an oath and pleaded guilty in his courtroom in 2018. Before the government filed its motion to dismiss, Flynn sought to withdraw the plea earlier this year based on his claim of government misconduct.
Defending against the barrage of accusations, Sullivan said he was “proceeding very cautiously” and encouraged Powell to pen arguments on his alleged bias in a motion to recuse.
The judge gave little time to a bombshell filing by an attorney for former FBI Deputy Assistant Director Peter Strzok on Monday, claiming that handwritten notes by Strzok submitted for the record by Flynn’s attorneys “appear to have been altered.”
Saying he was “floored” and found the letter “very unsettling,” Sullivan asked the Justice Department to represent in a filing that all records on the Flynn docket are “true and accurate.”
The Justice Department did not directly respond to the claim filed by Strzok’s attorney, specifically that handwritten dates were added on at least one occasion to the notes that are wrong and “could be read to suggest that a meeting at the White House happened before it actually did.”