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.