Appeals court seems unwilling to force dismissal of Michael Flynn case, attorneys face tough questioning

WASHINGTON – A federal appeals court panel seemed unwilling Friday to force a lower court judge to dismiss the case against Michael Flynn, President Donald Trump's former national security adviser.

U.S. District Judge Emmet Sullivan, who has been presiding over the case, has appointed a third party to challenge the Justice Department's bid to abandon its prosecution of Flynn. The move set off an unusual legal fight in the federal appeals court in Washington, D.C., where Flynn's attorneys asked the higher court judges to force Sullivan to dismiss the case, arguing that Sullivan has positioned himself as prosecutor, which goes beyond his authority.

During oral arguments Friday, the judges seemed skeptical that Sullivan has no such authority to seek advice from a third party.

"But you also know that the courts have said he's not merely a rubber stamp either," D.C. Circuit Court Judge Karen Henderson, a George H.W. Bush appointee, asked Flynn's attorney, Sidney Powell.

She also called Sullivan an "excellent" trial judge and said he may ultimately decide to dismiss the case, making an intervention from the appeals court unnecessary.

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The hearing is the latest in the protracted and fraught prosecution of Flynn. The former Army general pleaded guilty in 2017 to lying to the FBI about his communications with a former Russian ambassador and later reversed course, claiming investigators entrapped him into making false statements.

The government, too, reversed course, and sought to dismiss the case. The Justice Department, which tapped an outside prosecutor to review the case, argued that the January 2017 interview, during which Flynn made false statements to the FBI, was "unjustified." The interview did not have "a legitimate investigative basis," making Flynn's statements irrelevant "even if untrue," the department argued.

Instead of granting dismissal, Sullivan appointed a third party, known as amicus, to challenge the government's motion to drop the case and to examine whether Flynn had committed perjury for pleading guilty to a crime of which he now claims to be innocent.

A day before the hearing, Sullivan's court-appointed arbiter recommended that he deny the motion to dismiss, saying Flynn's guilt is "plain" and accusing the Justice Department of "gross abuse of prosecutorial power."

"The Department of Justice has a solemn responsibility to prosecute this case – like every other case – without fear or favor,” retired federal judge John Gleeson argued. “It has abdicated that responsibility through a gross abuse of prosecutorial power, attempting to provide special treatment to a favored friend and political ally of the President of the United States. It has treated the case like no other, and in doing so has undermined the public’s confidence in the rule of law."

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Gleeson also concluded that Flynn committed perjury, but stopped short of recommending that he face an additional charge. Gleeson, instead, urged Sullivan to move forward with the long-postponed sentencing for the crime to which Flynn pleaded guilty earlier. Gleeson said Sullivan should consider the perjury offense in deciding how to sentence Flynn.

During the hearing Friday, Powell argued that Sullivan is intruding on the power of the Justice Department to decide whether or not to prosecute a case.

"The judge has no authority to do anything further on the case ... The government has quit. He also has no authority to go into reasons behind the executive's determination to dismiss the case," Powell said, citing exculpatory evidence and misconduct by the FBI. "The only thing left to do is for the judge to order dismissal of the case."

Pressed by D.C. Circuit Court Judge Robert Wilkins, a Barack Obama appointee, on whether Sullivan has the authority to independently review the case, Powell acknowledged he does. But she said appointing an amicus to examine new issues, such as whether Flynn had committed perjury, is too far.

Jeff Wall, the principal deputy solicitor general for the Justice Department, argued that Sullivan's appointment of Gleeson is "improper" because it threatens the prosecutorial power of the Justice Department.

He said the case is now "playing out in a politicized environment" in which Gleeson has accused the Justice Department of abusing its power in favor of a presidential ally. Wall argued the government will then be forced to defend itself against the allegations, which creates a conflict between the executive and judiciary – "exactly what the court shouldn't be doing."

Wilkins posed a hypothetical example in which the government, for racist reasons, refuses to prosecute a white officer who used excessive force against a black man. "The district court can't do anything, or force the prosecutor to prosecute the case?" the judge asked.

Wall said such a situation is different from the Flynn case because it poses potential constitutional violations.

Beth Wilkinson, who represents Sullivan, argued because the government and the defense team agreed, the adversarial process that's critical in criminal cases is gone. She said all Sullivan is doing is seeking counterarguments.

"All this court is doing is getting advice ... The district court is not acting as a prosecutor nor has he made up his mind" on the issues, Wilkinson said.

Wilkinson did not receive much push back from two of the judges. But D.C. Circuit Court Judge Neomi Rao, who was appointed by Trump, pressed Wilkinson on the role of the third party.

"Who is the amicus representing here? When the government decides to drop the prosecution and the defendant agree ... who are they arguing on behalf of?" Rao asked.

Rao also questioned how the government, if Sullivan decides to deny the motion to dismiss, moves forward with sentencing Flynn when it already said it didn't want to prosecute in the first place.

Contributing: Kevin Johnson

This article originally appeared on USA TODAY: Michael Flynn: Court seems unwilling to force dismissal of Trump ally case