The legal team for retired Lt. Gen. Michael Flynn and lawyers for the Justice Department clashed with the judge presiding over the case against the former Trump national security adviser, asking an appeals court to direct the lower court to drop all charges.
The Justice Department told a U.S. district court 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.
Flynn’s attorneys were joined by the Justice Department last month in asking the D.C. Circuit for the U.S. Court of Appeals 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.”
Sidney Powell, a former federal prosecutor who took over Flynn’s representation last summer, filed a 26-page brief with the appeals court on Wednesday, arguing that Sullivan “has exceeded his power now precisely because General Flynn proclaimed his innocence and pursued a vigorous defense of his constitutional rights as soon as he retained unconflicted counsel.” In a reference to Sullivan’s 2018 suggestion that Flynn had committed treason, which the judge walked back with an apology, Powell argued the judge’s “proclivity for grabbing world-wide headlines by suggesting General Flynn has committed heinous crimes that don’t exist is once again on display.”
“Article II, Section 3 of the Constitution vests the power to execute the laws solely in the Executive Branch,” Powell argued. “Accordingly, the power to prosecute — to decide who, when, where, and how someone is charged with a federal crime — rests entirely with the Department of Justice.”
Powell said the appeal’s court’s “intervention is needed now — not after Respondent and his Amicus create a circus and sentence an innocent man.” She argued that “to allow Respondent to do anything other than grant the Motion to Dismiss would erode the authority of this Court, its precedent, the Constitution, and the Article II power” of the Justice Department.
“This Court must stop him before he further jeopardizes the legitimacy of the federal judiciary,” Powell said of Sullivan. “Accordingly, mandamus should issue to dismiss this case with prejudice, vacate the plea, and order any further proceedings conducted by a different judge.”
Sullivan filed his own 41-page brief through 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, insisting that “despite the assumptions underlying Mr. Flynn’s and the government’s briefs, Judge Sullivan has not decided to deny the motion to dismiss or to proceed with a contempt inquiry” and “all he has decided is that there may be something to decide.”
The judge contended that “it is consistent with the separation of powers to allow district courts presented with motions to dismiss to assess the contours of their authority and review the facts, particularly where granting the motion would entail dissolving multiple court orders, including a conviction.” And Sullivan’s lawyer argued that “the steps he has taken so far … are quintessential Article III functions that courts rely on to decide pending motions.”
Sullivan defended his decisions to pick Gleeson as an outside amicus and to set up a hearing on the dismissal motion in July.
The judge contended that “foreclosing that process through an extraordinary writ undermines the central tenets of our judicial system — that waiting for issues to be squarely and properly presented, ensuring full consideration of open questions, and understanding all the relevant facts leads to better decision-making” by judges.
“After spending more than two years convincing the district court of Mr. Flynn’s crimes and enlisting its Article III power to convict him, it is not asking too much for the government and Mr. Flynn to participate in that process before the district court rules,” Sullivan argued. “The petition should be denied.”
The Justice Department, filing a 26-page brief headlined by Solicitor General Noel Francisco and signed by assistant U.S. attorney Jocelyn Ballantine, argued that Sullivan’s brief opposing mandamus “says almost nothing about the serious separation-of-powers concerns here” and that the judge “nowhere acknowledges that, under Article II, the power to drop pending criminal charges belongs to the Executive, not the Judiciary.”
The DOJ lawyers also argued that Sullivan “offers no support at all for the novel and intrusive factual ‘investigations’ it contemplates conducting” and that “because the court could not prosecute petitioner … even if he had committed perjury, such additional fact-finding would serve no purpose — other than to burden the parties, delay this case’s end, and usurp power beyond Article III” constitutional limitations.
“Such ongoing judicial supervision of the Executive’s charging decision warrants mandamus given the stark separation-of-powers concerns. Under Article II, it is the President — not the Judiciary — who must ‘take care’ that prosecutors exercise their powers ‘faithfully’ and in the public interest,” the Justice Department argued, adding, “In these extraordinary circumstances, the district court’s prolongation of the prosecution also threatens petitioner’s rights in a manner that warrants mandamus … Mandamus is necessary to put an end to the district court’s ‘takeover’ of this case.”
Earlier Wednesday, Gleeson argued in district court that the Justice Department is engaged in “a gross abuse of prosecutorial power.”
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 FBI lawyer Lisa Page and several others, sought out ways to continue investigating Flynn, including by deploying the Logan Act.
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.”
