The lawyers for retired Lt. Gen. Michael Flynn asked an appeals court on Tuesday to intervene against the lower court judge who delayed the Justice Department’s effort to dismiss its criminal case against the former Trump national security adviser.
Sidney Powell, a former federal prosecutor who took over representation for Flynn last summer, filed a 44-page emergency petition for a writ of mandamus and a 93-page appendix, asking the U.S. Court of Appeals for the District of Columbia Circuit to tell Judge Emmet Sullivan to correct his decision to halt the DOJ motion to dismiss and to remove the judge from the case entirely.
“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 lawyers said. “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.”
“Petitioner respectfully requests that this Court order the district court immediately to (1) grant the Justice Department’s Motion to Dismiss; (2) vacate its order appointing amicus curiae; and (3) reassign the case to another district judge as to any further proceedings,” the filing read.
The Justice Department filed earlier this month 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.
In moving to drop the charges, the Justice Department said that after reviewing newly disclosed materials, it agreed with Flynn’s attorneys that his interview with the FBI should never have taken place because his conversations with the Russian ambassador were “entirely appropriate.”
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,” after intercepts of Flynn’s communications with a Russian envoy emerged. 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 United States of America hereby moves to dismiss with prejudice the criminal information filed against Michael T. Flynn,” Timothy Shea, the U.S. attorney for the District of Columbia, said in filing to dismiss the case against Flynn. “The Government has determined … based on an extensive review and careful consideration of the circumstances, that continued prosecution of this case would not serve the interests of justice.”
But last week, Sullivan appointed a retired New York federal judge, John Gleeson, to serve as an amicus curiae to “present arguments in opposition to the government’s Motion to Dismiss.” Sullivan also said Gleeson, another Clinton appointee who retired from the bench in 2016, should address “whether the Court should issue an Order to Show Cause why Mr. Flynn should not be held in criminal contempt for perjury” related to certain criminal statutes and guidelines along with “the Court’s inherent authority.”
Flynn’s legal team argued on Monday that “the district court has no authority to adopt the role of prosecutor or change the issues in the case by inviting or appointing amici to perform the investigation or prosecution that the court deems appropriate.”
“The Government, which has sole authority to dismiss this prosecution, has presented a well-documented motion explaining its reasons. The Government misconduct and Brady violations provide a more-than sufficient basis for dismissal,” Flynn’s team said. “An innocent man has been the target of a vendetta by politically motivated officials at the highest level of the FBI. The egregious Government misconduct, and the three-year abuse of General Flynn and his family, cry out for ending this ordeal immediately and permanently.”
The appeals court should intervene, Flynn’s attorneys argued, because “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 ruling by Sullivan came the same day that GOP senators released a declassified memo showing top Obama administration officials who received information responsive to “unmasking” requests that related to Flynn during the presidential transition period. Then-Vice President Joe Biden, who is now the presumptive Democratic nominee for president, was listed as an authorized recipient of unmasking intelligence on Flynn in January 2017.
Gleeson, who spent years as a U.S. district court judge for the Eastern District of New York following his time as chief of the Criminal Division in the U.S. Attorney’s Office there, co-authored an opinion article last week in the Washington Post, arguing that “the Justice Department’s move to dismiss the prosecution … does not need to be the end of the case — and it shouldn’t be.”
On Monday, Gleeson recommended to Sullivan that the court set up a briefing schedule to address the Justicw Department’s motion to dismiss as well as the court’s authority, factual developments in the case, and whether the court “should order the defendant to show cause why he should not be held in criminal contempt for perjury.”
