The presiding judge in retired Lt. Gen. Michael Flynn’s criminal case told an appeals court on Monday he does not have to act as a “mere rubber stamp” following the Justice Department’s motion to dismiss the charges against the former Trump national security adviser.
Judge Emmet Sullivan, a judge with the D.C. District Court, used an outside legal team — Beth Wilkinson, Kosta Stojilkovic, and Rakesh Kilaru — to submit a 46-page brief with the U.S. Court of Appeals for D.C. after Flynn’s legal team filed a petition for a writ of mandamus asking the appeals court to tell Sullivan to stop stalling and to allow the Justice Department to drop its case against Flynn. A three-judge panel on the higher court told the lower court judge to respond.
“It is unusual for a criminal defendant to claim innocence and move to withdraw his guilty plea after repeatedly swearing under oath that he committed the crime,” Sullivan’s lawyers said on Monday. “It is unprecedented for an Acting U.S. Attorney to contradict the solemn representations that career prosecutors made time and again, and undermine the district court’s legal and factual findings, in moving on his own to dismiss the charge years after two different federal judges accepted the defendant’s plea.”
In late May, the appeals court told Sullivan to respond to arguments from Flynn’s legal team. Sidney Powell, a former federal prosecutor who took over representation for Flynn last summer, had filed the emergency petition a few days prior.
“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 told the appeals court. “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.”
Sullivan appointed a retired New York federal judge, John Gleeson, to serve as an amicus curiae last month 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.”
Sullivan’s lawyers said, “The question before this Court is whether it should short-circuit this process, forbid even a limited inquiry into the government’s motion, and order that motion granted” and argued that “the answer is no.”
“Mandamus is an extraordinary remedy that should be denied where the district court has not actually decided anything,” the judge’s legal team said, adding that “the government’s motion is pending before Judge Sullivan and could well be granted, so Mr. Flynn can obtain the exact relief he seeks through ordinary judicial process.“
The Justice Department moved on May 7 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, but has since said he is innocent and was set up by the FBI.
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.
“Mr. Flynn’s case has garnered considerable attention. But that is no reason to resolve it outside the normal judicial process,” Sullivan’s team said Monday, adding, “The petition should be denied.”
Sullivan’s legal team said the “reversals” by DOJ lawyers presented Sullivan with “several substantial questions.” These included whether he was “required to grant the government’s post-plea motion to dismiss, and reverse his findings that Mr. Flynn’s false statements to the FBI about his contacts with Russia were material, without any inquiry into the facts set forth in, and surrounding, the government’s filing” and “what, if anything” Sullivan should do about “Mr. Flynn’s sworn statements to the court, where he repeatedly admitted to the crime and to the voluntariness of his guilty plea.”
Sullivan’s response will be scrutinized by a three-judge panel. Two judges, Karen Henderson and Neomi Rao, were appointed by Republican presidents. The other, Judge Robert Wilkins, was appointed by a Democrat.
Timothy Shea, the U.S. attorney for the District of Columbia, moved to drop the charges against Flynn in a 20-page court filing last month.
“The United States of America hereby moves to dismiss with prejudice the criminal information filed against Michael T. Flynn,” Shea said. “The Government has determined, pursuant to the Principles of Federal Prosecution and based on an extensive review and careful consideration of the circumstances, that continued prosecution of this case would not serve the interests of justice.”
Working with his old team from Covington & Burling, Flynn had pleaded guilty in December 2017 to lying to investigators about his conversations with Russian diplomat Sergey Kislyak about sanctions on Russia and a United Nations resolution on Israel.
The FBI intercepted Flynn’s discussions with Kislyak, after which Strzok and another agent, believed to be Joseph Pientka, grilled him on the contents of the conversation on Jan. 24, 2017.
The Justice Department said Thursday that “this crime, however, requires a statement to be not simply false, but ‘materially’ false with respect to a matter under investigation” and emphasized that “materiality is an essential element of the offense.”
“The Government is not persuaded that the January 24, 2017 interview was conducted with a legitimate investigative basis and therefore does not believe Mr. Flynn’s statements were material even if untrue,” Shea said in his court filing.
Former FBI Director James Comey admitted last year he took advantage of the chaos in the early days of Trump’s administration when he sent Strzok and Pientka to talk to Flynn.
