A federal appeals court ordered the judge overseeing the case against retired Lt. Gen. Michael Flynn to respond to a petition filed by the former Trump national security adviser for the criminal charges against him to be discarded.
The U.S. Court of Appeals for the D.C. Circuit told Judge Emmet Sullivan that he has 10 days to explain why he should not be forced to let the Justice Department drop its case against Flynn.
“Upon consideration of the emergency petition for a writ of mandamus, it is ORDERED, on the court’s own motion, that within ten days of the date of this order the district judge file a response addressing the petitioner’s request that this court order the district judge to grant the government’s motion to dismiss filed on May 7, 2020,” the appeals court said.
Sullivan was told to address Rule 48 from the Federal Rules of Criminal Procedure, which governs the government’s actions related to dismissing cases, and to address the D.C. Circuit Court ruling in United States v. Fokker Services, which limited the authority of courts in rejecting deferred prosecution agreements. Both were raised by Flynn’s lawyers in their petition.
The appeals court also said the Justice Department “is invited to respond in its discretion within the same ten-day period.”
Sidney Powell, a former federal prosecutor who took over representation for Flynn last summer, filed an emergency petition for a writ of mandamus earlier this week.
“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 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.”
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” 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.”
“A court of appeals grants a mandamus only after the judge has had an opportunity to respond,” Powell tweeted Thursday. “Here the Circuit ORDERS Sullivan to respond. The short time-table recognizes the seriousness of the issue to the proper administration of justice.”
Sullivan’s response will be scrutinized by a three-judge panel — two appointed by Republican presidents and one by a Democrat.
Judge Karen Henderson was appointed to the appeals court in 1990 by former President George H.W. Bush. She recently joined a 2-1 majority decision in February, ruling that Congress could not force former White House Counsel Don McGahn to testify. Henderson and the appeals court dismissed the lawsuit brought by House Democrats.
Judge Neomi Rao joined the circuit court after an appointment from President Trump in 2019, replacing Justice Brett Kavanaugh after he joined the Supreme Court. Rao was the lone dissenter on a three-judge panel earlier this year in the legal fight over the House Democrats’ effort to force the Justice Department to hand over grand jury material contained within special counsel Robert Mueller’s report. Democrats say they need the information to decide whether to impeach Trump over his alleged obstruction of the Russia investigation.
“Why is this controversy not moot?” Rao asked in her dissent. “After all, the Committee sought these materials preliminary to an impeachment proceeding and the Senate impeachment trial has concluded.”
Judge Robert Wilkins made his way to the appeals court in 2010 after being appointed by former President Barack Obama. Wilkins has been involved in a number of Trump-related cases, ruling against a Trump administration policy that limited access to abortion among illegal immigrant minors and declining to lift the 2019 gag order on Trump associate Roger Stone.
The Justice Department filed earlier this month to dismiss charges against Flynn, who cooperated with 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 did not lie.
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.
