The Justice Department and lawyers for retired Lt. Gen. Michael Flynn clashed with the lawyer who represents the presiding judge in the case against the former Trump national security adviser on Friday.
“We are here now to stop further impermissible intrusion” following the judge’s decision not to grant the Justice Department’s motion to dismiss the case immediately, said Sidney Powell, a former federal prosecutor who took over Flynn’s representation last summer. Addressing a three-judge panel from the U.S. Court of Appeals for the District of Columbia Circuit, Powell said the government “provided an extensive and thoroughly documented” argument for why the case should be dismissed.
The Justice Department told the U.S. District Court for the District of Columbia last month “that continued prosecution of this case would not serve the interests of justice” as it sought to drop the false statements charges against Flynn, but instead, Judge Emmet Sullivan, a Bill Clinton appointee who has been handling the Flynn case since December 2017, appointed retired New York federal Judge John Gleeson to serve as an amicus curiae to present arguments in opposition to the Justice Department’s motion and to explore whether Flynn should be charged with perjury or contempt.
The judges on the appeals court panel, two appointed by Republican presidents and one by a Democrat, appeared skeptical of some of the Flynn team’s arguments.
Judge Karen Henderson was appointed to the appeals court in 1990 by President George H.W. Bush, Judge Neomi Rao joined the circuit court following an appointment from President Trump in 2019, and Judge Robert Wilkins made his way to the appeals court in 2010 after being appointed by President Barack Obama.
Flynn’s attorneys were joined by the Justice Department last month in asking the D.C. appeals court to issue a writ of mandamus instructing Sullivan to dismiss the case, but Sullivan hired an outside lawyer to argue that he is not a “rubber stamp.”
Flynn’s lawyer pointed to the “extraordinary exculpatory evidence that came to light” following a review by Jeffrey Jensen, a U.S. attorney appointed by Attorney General William Barr, and she pointed to alleged abuse of power and a lack of authority by the judge.
“It cannot go on any longer,” Powell said. “This is the quintessential case for mandamus.”
Sullivan was represented by attorney Beth Wilkinson, who is also representing former Hillary Clinton chief of staff Cheryl Mills as Judicial Watch pursues testimony from her related to the Clinton email scandal. Wilkinson said Friday that this was an extraordinary instance where the Justice Department was trying “to stop the district court from even considering a pending motion.”
“It would be inappropriate to grant mandamus” in a case where the Justice Department was “raising novel constitutional issues,” Wilkinson said, calling the petition for a writ of mandamus “an end run” around the district court.
Wilkinson also dismissed the “parade of horribles” presented by the Justice Department, downplaying Sullivan’s actions by saying that he was only “receiving briefings and having a hearing” and that all the court was trying to do was get answers.
Rao repeatedly asked who the amicus would “be arguing on behalf of” given that the Justice Department and the defendant were in agreement. Wilkinson said Gleeson was there to take the “adversarial position” normally taken by the government and that “the judge doesn’t have to listen to the amicus.”
Principal Deputy Solicitor General Jeff Wall, representing the Justice Department, argued that “it is so harmful to allow this case to continue to play out in the district court” and said Sullivan was “required” to accept the motion to dismiss.
When Rao asked what he thought the separation of powers problems were with the case, Wall said, “They are as stark and as concrete here as they come.”
Wall also lamented the “public spectacle” of the case, saying he believed it would do harm to the executive branch “and to the judiciary as well.”
Wall said the case “is playing out in a politicized environment” and that it was “made worse” by the “polemic” filed by Gleeson this week, which alleged wrongdoing by Barr and Trump.
Gleeson argued Wednesday in district court that the Justice Department is engaged in “a gross abuse of prosecutorial power.”
Henderson said Sullivan “may have appointed an intemperate amicus, but that doesn’t mean he isn’t going to grant the motion.” She added, “For all we know, he will say this amicus brief is over-the-top, and the dismissal motion is granted.”
Wall said that “this is a separation of powers case” and pointed to constitutional concerns under “Article II, Section 3.” He also said Gleeson was “impugning the motivations of the attorney general of the United States … in what threatens to be a spectacle in the district court.”
Wilkins repeatedly pressed Wall on whether, in a hypothetical situation, the Justice Department would be able to use a racial motive to dismiss a case where a white officer pleaded guilty to excessive force against a black victim without the district court being able to intervene. Wall argued that such an unconstitutional motivation in violation of the equal protection clause was far different than the allegations being made in the Flynn case.
Flynn’s lawyers have touted recently released FBI records as exculpatory evidence that was concealed from the defense team. The documents show, among other things, that then-FBI agent Peter Strzok and the FBI’s “seventh floor” leadership stopped the bureau from closing its investigation into Flynn in early January 2017 even though investigators had uncovered “no derogatory information.”
Powell took over Flynn’s representation from Covington & Burling LLP, under whose guidance Flynn pleaded guilty in December 2017 to lying to investigators about his conversations with Russian diplomat Sergey Kislyak. Earlier this year, Flynn sought to withdraw his guilty plea and declared that he was “innocent of this crime.”
