The presiding district court judge in Lt. Gen. Michael Flynn’s case has set a hearing date for debate over the Justice Department’s motion to dismiss it after the full appeals court rejected efforts to order the judge to drop the case quickly.
Oral arguments in the high-profile case have been set for Sept. 29, Judge Emmet Sullivan announced.
“The United States and General Flynn agree that this Court should resolve the pending motion to dismiss with dispatch. It is not necessary to delay further proceedings,” the Justice Department and Flynn’s team said in a joint request over the weekend. “Any delay would harm both the government, which must expend resources on a case that it has determined should be dismissed, and General Flynn, who faces impairments on his liberty and the cloud of a pending prosecution that the Executive Branch seeks to end.”
In late August, the full U.S. Court of Appeals for the District of Columbia Circuit reversed a three-judge appeals court panel decision and denied the former Trump national security adviser’s push to have the case tossed quickly. The 8-2 decision threw the case back to Sullivan, who has resisted allowing the Justice Department to dismiss the case swiftly, and the politically charged legal fight now threatens to extend up to and past the Nov. 3 presidential election.
Sidney Powell, the former federal prosecutor who took over Flynn’s legal defense last year, and acting Solicitor General Jeff Wall, had argued that Sullivan appeared biased against Flynn, including through his appointment of retired New York Judge John Gleeson as amicus curiae, his resistance to drop the case, and his alleged violation of the separation of powers. The Justice Department and Flynn’s team argued the en banc appeals court should have agreed with the three-judge appeals panel ruling from June that ordered the President Bill Clinton appointee to drop the case. Sullivan’s lawyer said the judge should be allowed to hold a hearing before making a decision on the Justice Department’s motion to dismiss.
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.
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 its case against Flynn after new records were made public. Instead, Sullivan, who has handled the Flynn case since December 2017, appointed 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.
Gleeson has argued that the Justice Department engaged in “a gross abuse of prosecutorial power” in moving to dismiss the Flynn case. Flynn’s team countered, saying, “The irony and sheer duplicity of Amicus’s accusations against the Justice Department now — which is finally exposing the truth — is stunning.”
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 team, including Flynn. Pientka and now-fired FBI 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?”
