WASHINGTON (CN) — Former Trump national security adviser Michael Flynn accused the federal judge on his case of hijacking criminal procedure on Monday, saying the D.C. Circuit’s order to end his prosecution should stand without an en banc rehearing.
The appeals court had issued the directive last month in a 2-1 split, saying U.S. District Judge Emmet Sullivan was wrong not to immediately grant the motion to dismiss filed abruptly by the government.
A Clinton appointee, Sullivan instead had set a hearing date and appointed a retired New York judge to serve as amicus curiae. Following the panel order last month, he asked the full D.C. Circuit on July 9 to take up the dispute, arguing it prevents him from fully adjudicating a pending motion.
“The opinion is couched as a fact-bound ruling based on ‘the record before the district court,’” Sullivan’s attorney Beth A. Wilkinson wrote in the petition for rehearing en banc. “It in fact marks a dramatic break from precedent that threatens the orderly administration of justice.”
But Flynn’s attorney on Monday slammed Sullivan — who prior to taking on the federal judgeship in 1994 had served three years on the D.C. Court of Appeals, appointed by President George H. W. Bush — claiming he has delayed their client’s freedom when there is no case or controversy in play.
“The district court has hijacked and extended a criminal prosecution for almost three months for its own purposes. For these reasons and those in Flynn’s Petition and Reply, and the arguments and briefs of the Government, this Court should deny rehearing and issue mandamus to dismiss with prejudice instanter,” the brief by Flynn’s attorney Sidney Powell states (emphasis in original).
The executive branch holds the power to drop criminal charges at any time, the defense has repeatedly argued, accusing Sullivan of being an attention-hungry umpire.
Powell claimed Monday that no federal judge has ever made a request such as Sullivan’s for an appeals court to rehear a mandamus petition, and argued the longtime jurist has no standing to draw out the case.
“Judge Sullivan has no cognizable interest in the case,” the attorney wrote.
The D.C. Circuit should deny rehearing, Powell added, “because the panel properly applied the longstanding use of mandamus to which General Flynn is clearly entitled ‘to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.’”
She also pointed to what the defense has claimed are significant filings relied on by the government in its motion to dismiss, specifying 20 pages of briefing and 80 pages of new “exculpatory documents.” The records were brought forward by a U.S. attorney tapped by Attorney General William Barr to investigate the prosecution.
Flynn’s defense team also pushed back on Sullivan’s claim that he has the authority to scrutinize the Trump administration’s rapid move to drop the case because the defendant had two separate “judgment[s] of conviction.” During the FBI investigation of Russian interference in the 2016 presidential election, the former White House adviser Flynn pleaded guilty twice to lying to federal agents.
“This is wrong on every level,” Powell argued, claiming Flynn had been “forthcoming with the agents” and that Obama-era officials pushed for the investigation to prosecute him or “get him fired.”
Trump-appointed U.S. Circuit Judge Neomi Rao wrote last month’s majority opinion that said Sullivan’s actions constituted the judiciary usurping power from the executive branch.
She argued the case record lacked clear evidence that the motion to dismiss strayed from regularity.
“A hearing cannot be used as an occasion to superintend the prosecution’s charging decisions, because ‘authority over criminal charging decisions resides fundamentally with the executive, without the involvement of — and without oversight power in — the judiciary,’” Rao wrote on June 24.
For his part, Sullivan leaned heavily on the argument that fulsome briefing and adversarial arguments lead to better judicial decisions.
“It has never been deemed enough for mandamus to simply distinguish authorities supporting the district court’s actions — there must instead be clear law foreclosing them,” Sullivan’s attorney Wilkinson wrote. “If the law were otherwise, mandamus would become commonplace.”
Sullivan has consistently held that having been assigned to preside over the case, he was only carrying out his judicial duties.
“Judicial decisions are supposed to be based on the record before the court, not speculation about what the future may hold,” Wilkinson wrote. “All the district court has done is ensure adversarial briefing and an opportunity to ask questions about a pending motion.”