Judge Emmet Sullivan, who is presiding over the case against retired Lt. Gen. Michael Flynn, asked for a rehearing by a full appeals court after a three-judge panel ordered him to accept the Justice Department’s motion to dismiss the case.
“The panel’s decision threatens to turn ordinary judicial process upside down,” Sullivan’s lawyer argued in a 69-page petition to the U.S. Court of Appeals for the D.C. Circuit on Thursday. “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. … And en banc review should be granted.”
Beth Wilkinson, Sullivan’s attorney, said the appeals court had granted mandamus “to prevent the district court from receiving adversarial briefing and argument on a pending motion.” She claimed the panel’s opinion “is couched as a fact-bound ruling based on the record before the district court” when “it in fact marks a dramatic break from precedent that threatens the orderly administration of justice.”
The three-judge appeals panel ordered Sullivan to grant the Justice Department’s motion to drop the criminal charges against President Trump’s former national security adviser in late June.
Judge Neomi Rao, who was appointed by Trump in 2019, authored the opinion ordering Sullivan to dismiss the 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, noting that Flynn’s team was seeking a three-part order directing the district court to grant the motion to dismiss, to vacate the amicus appointment, and to reassign the case to a different judge. Rao granted the first two requests, but she denied Flynn’s “petition to the extent he seeks reassignment of the district judge” because “this case does not meet the ‘high bar’ for reassignment.”
“This is plainly not the rare case where further judicial inquiry is warranted,” Rao wrote. “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.”
Sullivan’s lawyer made three broad arguments on Thursday to convince the broader appeals court to listen to the case: first, that the appeals court panel “undermined” the appeal’s court’s “consistent interpretation of the mandamus standard by forcing the district court to grant a motion it had not yet resolved”; second, that the appeals panel “undercut Supreme Court and Circuit precedent in holding that the separation of powers precluded the district court from inquiring into the government’s [dismissal] motion”; and third, that the panel’s ruling “contravened Supreme Court and Circuit precedent in precluding the district court from appointing an amicus and scheduling a hearing.”
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, but 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, led by Sidney Powell, 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, and the Justice Department is seeking to drop the case. The appeals court ordered the lower court to make that happen, but Sullivan is putting up some resistance.
Gleeson argued the Justice Department engaged in “a gross abuse of prosecutorial power” in moving to dismiss the Flynn case. Flynn’s team countered that “the irony and sheer duplicity of Amicus’s accusations against the Justice Department now — which is finally exposing the truth — is stunning.”
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 the FBI’s head of counterintelligence, Bill Priestap, show him asking, “What is our goal? Truth/Admission or to get him to lie, so we can prosecute him or get him fired?”
