In their latest bid to end a protracted legal fight immediately, retired Lt. Gen. Michael Flynn’s lawyer and the Justice Department argued on Tuesday that the presiding judge in the former Trump national security adviser’s case had the appearance of bias.
Sidney Powell, the former federal prosecutor who took over Flynn’s legal defense last year, and acting Solicitor General Jeff Wall, representing the Justice Department in court following its move to toss the false statements charge against Flynn, clashed with Judge Emmet Sullivan’s attorney, Beth Wilkinson, during a four-hour hearing before 10 skeptical judges on the U.S. Court of Appeals for the District of Columbia.
Powell and Wall argued that Sullivan appeared biased against Flynn, including through his appointment of retired New York Judge John Gleeson as amicus, his resistance to drop the case, and his alleged violation of separation of powers, and said the en banc appeals court should agree with the three-judge appeals panel ruling from June that ordered the Bill Clinton appointee to drop the case. Sullivan, who had asked for a rehearing from the entire appeals court, and Wilkinson said Tuesday that Sullivan should be allowed to hold a hearing on the DOJ’s motion to dismiss, saying fears about intrusive questions were speculative.
The lengthy questioning from many of the judges indicated they might disagree with the 2-1 June decision from their colleagues, which has been vacated, and would allow Sullivan to hold a dismissal hearing. If the appeals court doesn’t force Sullivan to drop the case, the politically charged legal fight threatens to extend up to and past the Nov. 3 election.
Judge Thomas Griffith, a George W. Bush appointee, suggested Tuesday that the Flynn case might be “in the wheelhouse” of “favoritism for a politically powerful defendant” and that “one of the purposes” of Sullivan holding a hearing might be to ask about that. He said the judge’s role is not just “ministerial” and that a judge is “not simply a rubber stamp.”
Powell argued that Sullivan has “discarded any semblance of the unbiased, impartial adjudicator” and has “so invested himself in his own prosecution of General Flynn” that he should be “disqualified” for the “now glaring appearance of bias.” She said the appeals court should “vacate the unconstitutional appointment” of Gleeson for the “intrusion into the sole Article II functions of the executive branch” and should “compel the district court to grant the dismissal.”
“Gen. Flynn is a defendant without a prosecutor, in litigation now without any controversy between the actual parties to the case,” Powell argued, lamenting that Sullivan had appointed an amicus “to usurp the role of prosecutor,” “raised the sword of perjury and contempt charges over Flynn’s head,” and “impermissibly sallied forth to right the wrongs he perceived.”
Wall said the Justice Department now “reluctantly” believes that Sullivan might need to be removed because of “a level of investment in the proceedings that is problematic” and because the judge seems to have “prejudged” some of the questions in the case. Wall said there is “a question about the appearance of impartiality” from Sullivan, though he stressed that “we’re not saying that there is an actual partiality problem, but we do think there is an appearance problem.”
“When the executive branch no longer wishes to prosecute, and the defendant agrees, the criminal case should be at an end,” Wall said, adding that Sullivan “plans to conduct an intrusive inquiry into the executive’s dismissal decision” which will result in “harms” that Sullivan has ignored.
“In the end, the criminal charge against petitioner must be dismissed,” Wall argued. “The only question is how much further the harmful and unnecessary process will be allowed to play out. The answer in our constitutional scheme should be: no further.”
Flynn, a target of special counsel Robert Mueller’s Russia investigation, pleaded guilty in December 2017 to lying to FBI investigators about his December 2016 conversations with a Russian envoy, but after changing legal teams, Flynn claimed he was innocent and had been set up by the FBI. After Attorney General William Barr appointed U.S. Attorney Jeffrey Jensen to review the Flynn case, who unearthed a host of new documents deemed exculpatory by Flynn’s lawyers, the Justice Department moved to drop the case.
“The extraordinary remedy of mandamus is unwarranted when the district judge has yet to decide a pending motion. By appointing an amicus, scheduling a hearing, and receiving briefing from the parties, the district court is doing what district courts do — preparing to rule on a motion,” Wilkinson argued.
“The judge has not asked any questions of the government or anyone else,” Wilkinson said. “No fact-finding has been requested, and briefing by the parties as not finished. Once that process is complete and the judge studies the papers, there may be little left to discuss at the hearing. The parties’ speculation and fears about what the district court might do are not a proper basis for mandamus.”
The Justice Department told the district court in May “that continued prosecution of this case would not serve the interests of justice” as it sought to drop the false statements charges against Flynn after new records were made public.
Recently declassified FBI documents show that the counterintelligence briefing FBI agent Joseph Pientka gave to Trump during the 2016 campaign was used as a pretext to gather investigative evidence on the Trump campaign and Flynn. Pientka and now-fired FBI special agent Peter Strzok interviewed Flynn at FBI Director James Comey’s behest in January 2017.
Documents declassified earlier this year indicate that Strzok abruptly stopped the FBI from closing its investigation into Flynn in early January 2017 at the insistence of the FBI’s “seventh floor” after the bureau had uncovered “no derogatory information” on Flynn.
Notes from Bill Priestap, the FBI’s former head of counterintelligence, show him asking, “What is our goal? Truth/Admission or to get him to lie, so we can prosecute him or get him fired?”
