Retired Lt. Gen. Michael Flynn’s defense team asked an appeals court to oppose a request by the judge presiding over his case, who had asked for a rehearing by the full court.
Sidney Powell, a former federal prosecutor who took over Flynn’s defense last summer, filed a 29-page motion on Monday in opposition to Judge Emmet Sullivan’s request for an en banc hearing by the full U.S. Court of Appeals for the District of Columbia Circuit after a three-judge panel ordered him to grant the Justice Department’s motion to drop the case against the former Trump national security adviser.
“Judge Sullivan’s stubborn disagreement with the Government’s decision to dismiss the case does not confer the right to contest it himself or through his amicus. His actions smack of vindictive animus against General Flynn and judicial overreach that have no place in America’s justice system. No precedent even suggests a ‘hearing’ on a substantial government motion to dismiss. Not one,” Flynn’s lawyers said on Monday. “General Flynn’s personal freedom is at stake. He cannot travel freely, obtain employment, or enjoy a normal life until this case is dismissed. His very liberty is wrongly impaired until the dismissal is granted.”
Powell also called Sullivan’s motives into question.
“Judge Sullivan’s extraordinary actions arise solely from his disagreement with the Government’s decision to dismiss the case against General Flynn. Not only did he wrongfully tar General Flynn with a baseless assertion of treason, but he has been vocal that General Flynn should be punished severely,” her filing said. “Disagreement over a charging decision provides no basis to deny the government’s motion.”
Sullivan’s lawyer Beth Wilkinson claimed that “the panel’s decision threatens to turn ordinary judicial process upside down,” adding that, “It is the district court’s job to consider and rule on pending motions, even ones that seem straightforward. This Court, if called upon, reviews those decisions — it does not preempt them. … En banc review should be granted.”
Judge Neomi Rao, who was appointed by President Trump in 2019, authored the June opinion ordering Sullivan to dismiss the Flynn case. She was joined by Judge Karen Henderson, appointed to the appeals court in 1990 by President George H.W. Bush. Judge Robert Wilkins, who made his way to the appeals court in 2010 after being appointed by President Barack Obama, issued a dissenting opinion.
“In its motion, the government explains that in light of newly discovered evidence of misconduct by the Federal Bureau of Investigation, the prosecution can no longer prove beyond a reasonable doubt that any false statements made by Flynn were material to a legitimate investigation,” Rao wrote, adding, “This is plainly not the rare case where further judicial inquiry is warranted. To begin with, Flynn agrees with the government’s motion to dismiss, and there has been no allegation that the motion reflects prosecutorial harassment. Additionally, the government’s motion includes an extensive discussion of newly discovered evidence casting Flynn’s guilt into doubt. … Insufficient evidence is a quintessential justification for dismissing charges.”
Flynn’s team said on Monday that the appeals court should deny the request for a rehearing en banc because Sullivan “has no standing” to litigate this since the three-judge panel decision “is correct and consistent with all precedent” in similar cases and since “there is no case and controversy.” Flynn’s lawyers argued that allowing Sullivan to delay the case “is unconstitutional” and that Sullivan’s actions “diminish the status of the federal judiciary as an independent bulwark” for the rule of law.
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 evidence deemed exculpatory by his team was unearthed. Instead, 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.
Flynn’s legal team and lawyers for the Justice Department argued separately before a three-judge appeals court in June that the higher court should grant a petition for a writ of mandamus and direct Sullivan to grant the Justice Department’s motion to drop the charges.
Flynn pleaded guilty in December 2017 to lying to FBI investigators about his December 2016 conversations with a Russian envoy. But Flynn now claims he was set up by the FBI.
Notes from fired FBI agent Peter Strzok released in late June show that former Vice President Joe Biden raised the Logan Act during an early January 2017 Oval Office meeting about Flynn.
Documents declassified 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. Emails showed Strzok, along with FBI lawyer Lisa Page and several others, sought to continue investigating Flynn, even considering the Logan Act.
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?”
“No federal circuit has countenanced rehearing of a mandamus on petition by a district judge. Judge Sullivan has no cognizable interest in the case. Rehearing should be denied because the panel properly applied the longstanding use of mandamus to which General Flynn is clearly entitled,” Powell told the appeals court on Monday, adding, “The district court has hijacked and extended a criminal prosecution for almost three months for its own purposes. For these reasons and those in Flynn’s Petition and Reply, and the arguments and briefs of the Government, this Court should deny rehearing and issue mandamus to dismiss with prejudice instanter.”
