U.S. District Judge Emmet G. Sullivan last week paused Flynn’s case to hear from interested parties and appointed former New York federal judge John Gleeson to argue against the government request. Sullivan also asked Gleeson to examine whether the former three-star general may have committed perjury while pleading guilty to lying about his pre-inauguration contacts with Russia’s ambassador.
In a 44-page filing to the U.S. Circuit Court of Appeals for the D.C. Circuit, Flynn’s lawyers accused Sullivan of bias and acting at “loggerheads” with recent Supreme Court precedent. Sidney Powell and Flynn’s other attorneys also asked that the case be reassigned for any future proceedings.
“The egregious Government misconduct, and the three-year abuse of General Flynn and his family, cry out for ending this ordeal immediately and permanently,” Powell wrote. “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.”
The Justice Department on May 7 moved to toss out the guilty plea of the highest-ranking Trump adviser convicted in special counsel Robert S. Mueller III’s Russia investigation. The department concluded that Flynn should never have been interviewed by the FBI and therefore his lies concealing his Russian contacts were immaterial to any crime.
Critics dispute the department’s move, saying it distorted facts and appeared to serve the president’s personal political interests by giving an aide impunity to lie to government investigators.
Flynn pleaded guilty to lying in an FBI interview on Jan. 24, 2017, to conceal conversations with Sergey Kislyak, Russia’s ambassador at the time. The conversations involved talks before Trump took office about avoiding U.S. sanctions and other policies imposed late in Barack Obama’s administration after Russia interfered in the 2016 presidential election.
In a declassified email released Tuesday by Senate Republicans, former national security adviser Susan E. Rice noted concern in Obama’s White House about the frequency of Flynn’s contacts with Kislyak and that the then-FBI director said sharing classified information with him could “potentially” be an issue. Obama emphasized that the handling of the Russia investigation should be done by the book, Rice wrote in a note to herself on Jan. 20, 2017, which was Inauguration Day.
In their filing Tuesday, Flynn’s lawyers said prosecutors, not judges, have the authority to decide how to handle pending criminal charges. Judges, they said, may not “change the issues in the case by inviting or appointing” others to perform the executive branch’s duties to investigate or prosecute.
“A district court cannot deny the Government’s motion to dismiss because the judge has ‘a disagreement with the prosecution’s exercise of charging authority,’ they said. “Nor should a court second-guess the Government’s ‘conclusion that additional prosecution or punishment would not serve the public interest.’”
In asking that the case be reassigned, Flynn’s defense criticized Sullivan for suggesting at a December 2018 hearing that Flynn may have committed “treason,” before correcting himself, and for saying the former general had “sold [his] country out.”
“This is an umpire who has decided to steal public attention from the players and focus it on himself,” Powell wrote. “He wants to pitch, bat, run bases, and play shortstop. In truth, he is way out in left field.”
The filing also suggests that the retired judge Sullivan appointed is not impartial because of an opinion piece by Gleeson that appeared in The Washington Post. In the article, Gleeson questioned the Justice Department’s move to dismiss the case against Flynn and suggested that the court “assess the credibility of the department’s stated reasons for abruptly reversing course.”
Flynn’s attorneys petitioned the appeals court for a writ of mandamus, used when no other relief is available, that requires a party to show “clear and indisputable” right to reverse error by a court. Meeting that high bar may be difficult because the judge has not made a decision yet on the Justice Department’s request, but has appointed a retired judge to advise him now that the government has decided to drop the case.
In abandoning the nearly three-year-old case, the Justice Department cited recently uncovered FBI records showing that the bureau had decided to close a counterintelligence investigation of Flynn — dubbed Operation Razor — before learning of his December 2016 calls with Kislyak. The Justice Department also said the FBI knew from transcripts that the calls probably did not give rise to a crime by themselves and that FBI officials differed over how to handle or interpret his actions.
Legal analysts and those involved in the case vigorously dispute the Justice Department’s claims as an attempt to please the president and attack his adversaries.
Critics of Attorney General William P. Barr’s decision argued that the FBI had ample legitimate grounds to investigate Flynn’s lies, which went to the heart of the investigation into whether Trump’s campaign coordinated with Russia’s interference in the election.
Flynn admitted under oath three times before two federal judges that he gave false statements to the FBI as well as to the White House. Federal law criminalizes lying in any matter under court, congressional or executive branch jurisdiction.