Trump administration lawyers called on the U.S. Court of Appeals for the D.C. Circuit to instruct the judge presiding over retired Lt. Gen. Michael Flynn’s case to allow the Justice Department to drop its charges against the former Trump national security adviser.
Solicitor General Noel Francisco, the top litigator for the executive branch, filed a 45-page brief with the appeals court on Monday, asking its judges to agree with the petition for writ of mandamus filed by Flynn’s defense team and to tell Judge Emmet Sullivan to allow the Justice Department to dismiss. The solicitor general was joined in his brief by acting U.S. Attorney for D.C. Michael Sherwin, Assistant U.S. Attorney Jocelyn Ballantine, Assistant Attorney General Brian Benczkowski, and other top Trump administration lawyers.
“The Constitution vests in the Executive Branch the power to decide when — and when not — to prosecute potential crimes. Exercising that Article II power here, the Executive filed a motion to dismiss the indictment, and petitioner consented,” Francisco told the appeals court. “Despite that exercise of prosecutorial discretion, and the lack of any remaining Article III controversy between the parties, the district court failed to grant the motion and bring the case to a close. It instead appointed an amicus curiae to argue against dismissal and to consider additional criminal charges. This Court should issue a writ of mandamus compelling dismissal.”
The solicitor general repeatedly cited Federal Rule of Criminal Procedure 48(a), which says “the government may, with leave of court, dismiss an indictment.”
“That language does not authorize a court to stand in the way of a dismissal the defendant does not oppose,” Francisco argued, adding, “nor, under the circumstances of this case, may the district court assume the role of prosecutor and initiate criminal charges of its own.”
“Instead of inviting further proceedings, the court should have granted the government’s motion to dismiss,” he said.
Shortly before the Trump administration weighed in Monday, Sullivan’s outside legal team — Beth Wilkinson, Kosta Stojilkovic, and Rakesh Kilaru — submitted their own 46-page brief with the appeals court, arguing that the district court judge should not be forced to toss the case immediately.
“It is unusual for a criminal defendant to claim innocence and move to withdraw his guilty plea after repeatedly swearing under oath that he committed the crime,” Sullivan’s lawyers said on Monday. “It is unprecedented for an Acting U.S. Attorney to contradict the solemn representations that career prosecutors made time and again, and undermine the district court’s legal and factual findings, in moving on his own to dismiss the charge years after two different federal judges accepted the defendant’s plea.”
The solicitor general argued the appeals court “should issue a writ of mandamus directing the district court to grant the government’s motion under Rule 48(a) to dismiss the indictment.”
“The threat of intrusive judicial proceedings and criminal charges — and potentially even evidentiary proceedings if the court-appointed amicus has his way — only makes the separation-of-powers problem worse,” Francisco said. “The district court plans to subject the Executive’s enforcement decision to extensive judicial inquiry, scrutiny, oversight, and involvement. Under the Supreme Court’s and this Court’s precedents, it is clear and indisputable that the district court has no authority to embark on that course.”
Sullivan’s team said the judge was not a “mere rubber stamp” for the Justice Department.
In late May, the appeals court told Sullivan to respond to arguments from Flynn’s legal team. Sidney Powell, a former federal prosecutor who took over representation for Flynn last summer, had filed the emergency petition a few days prior.
“This petition seeks an order directing the district court to grant the Justice Department’s Motion to Dismiss its criminal case against former National Security Advisor to President Trump, Lieutenant General Michael T. Flynn (Ret.),” Flynn’s team told the appeals court. “The Government moved to dismiss the Information charging a violation of 18 U.S.C. §1001 after an internal review by United States Attorney Jeffrey Jensen unearthed stunning evidence of government misconduct and General Flynn’s innocence.”
Sullivan appointed a retired New York federal judge, John Gleeson, to serve as an amicus curiae last month to “present arguments in opposition to the government’s Motion to Dismiss” and to address “whether the Court should issue an Order to Show Cause why Mr. Flynn should not be held in criminal contempt for perjury.” Flynn’s team called the move “a travesty of justice.”
The Justice Department moved on May 7 to dismiss charges against Flynn, who cooperated with special counsel Robert Mueller’s investigators after pleading guilty to lying to the FBI about his contacts with a Russian diplomat, but has since said he is innocent and was set up by the FBI. “The Government is not persuaded that the January 24, 2017 interview was conducted with a legitimate investigative basis and therefore does not believe Mr. Flynn’s statements were material even if untrue,” DOJ lawyers said.
Flynn’s lawyers have touted recently released FBI records as being exculpatory evidence that was concealed from the defense team. The documents suggest that now-fired FBI agent Peter Strzok and the FBI’s “7th floor” leadership stopped the bureau from closing its investigation into Flynn in early January 2017, even though investigators had uncovered “no derogatory information” as of early January 2017. Emails from later that month show Strzok, along with then-FBI lawyer Lisa Page and several others, sought out ways to continue investigating Flynn, including by deploying the Logan Act.
The FBI intercepted Flynn’s discussions with Russian ambassador Sergey Kislyak, after which Strzok and another agent, believed to be Joseph Pientka, grilled him on the contents of the conversation on Jan. 24, 2017.
Former FBI Director James Comey admitted last year he took advantage of the chaos in the early days of Trump’s administration when he sent Strzok and Pientka to talk to Flynn.
