A federal appeals court panel appears poised to reject — at least for now — Michael Flynn’s effort to force a federal judge to dismiss the criminal case against him.
Flynn, President Donald Trump’s former national security adviser who pleaded guilty to lying to the FBI, is urging the courts to swiftly toss out his case after Attorney General William Barr last month moved to drop the prosecution. But on Friday, the three-judge panel of the U.S. Court of Appeals for the D.C. Circuit expressed serious reservations about cutting short the typical process and forcing the trial judge assigned to Flynn’s case, Emmet Sullivan, to act before he has a chance to consider his options.
“I don’t see why we don’t observe regular order and allow him to rule,” said appeals court Judge Karen Henderson, an appointee of President George H.W. Bush, during pointed telephone arguments that stretched to nearly an hour and 45 minutes.
“There’s nothing wrong with him holding a hearing, as far as I know,” Henderson added. “I don’t know of any authority that says he can’t hold a hearing before he takes action.”
In the unusual appeals court proceeding, lawyers for Flynn and the Justice Department squared off with a private attorney that Sullivan picked to represent him. Flynn had asked the appeals court to take the rare step of mandating that Sullivan dismiss the case, even though he has yet to render a decision on the matter.
Last month, Barr took a similarly rare step to abandon Flynn’s prosecution despite the guilty plea he entered in the case back in 2017 and reaffirmed a year later, before trying to withdraw that plea after Sullivan appeared poised to sentence him to prison.
Barr, who had tasked a U.S. attorney with reviewing the matter, said newly discovered evidence undermined the case and indicated that the FBI never had a legitimate reason to conduct the interview of Flynn that led to the false-statement charge.
With both the government and the defense in agreement about ending the case, Sullivan appointed a former federal judge to argue against that stance and to advise him on whether Flynn should face contempt proceedings related to seemingly contradictory statements he made to the court.
Although the appeals court judges appeared disinclined to short-circuit Sullivan, at least two of the judges suggested Sullivan doesn’t have much leeway to press on with the case. The ex-judge Sullivan appointed has recommended he proceed to sentence Flynn, but any move by the judge to do that seems certain to trigger another trip to the appeals court.
The D.C. Circuit may be setting up a possibility of a hearing next month where Sullivan will seek answers from the government about its decision to drop the case. Sullivan would then face the question of whether to try to force one or more of the lawyers involved to explain a decision-making process the government has already said it is entitled to keep confidential.
It’s unclear whether any future appeal would be heard by the same panel or another one. The one assigned to the case now has two Republican appointees and one Democratic appointee, although the broader bench of the appeals court has more Democratic-appointed judges.
Flynn lawyer Sidney Powell said the appeals court should step in now because there’s no legal basis for Sullivan to continue with the case after the prosecution threw in the towel.
“It cannot go on any longer,” she said. “The court can’t make the government prosecute this case. … The government has quit and it’s time to leave the field.”
Going further than Flynn’s initial filing with the appeals court, Powell said allowing additional proceedings of any kind against the former White House official — including the contempt-of-court process Sullivan is mulling — would be cruel and improper.
“This is an appalling injustice,” she said. “It’s a travesty of justice that this man has been dragged through this for three years on a case that was concocted by FBI agents with some help from [the] Department of Justice. … The toll it takes on a defendant to go through this is enormous.”
Justice Department attorney Jeffrey Wall, the No. 2 official in the solicitor general’s office, agreed with Powell that allowing Sullivan to proceed with a hearing would be a mistake.
“This has already become and, I think, is only becoming, more of a public spectacle,” Wall warned. “It threatens to harm not just the integrity of the executive and its prosecutorial discretion and its deliberative process, but I think, frankly, it threatens to do harm to the judiciary, as well. … We can’t ignore that this is playing out in a politicized environment.”
Wall repeatedly told the judges that Barr and Trump have faced accusations of political meddling in the case. Wall did not mention that Trump has fueled much of the controversy by tweeting about Flynn’s case and other pending criminal matters, even after Barr privately and publicly warned him not to.
As it became clearer that the appeals court panel was not inclined to take control from Sullivan right now, Wall seemed to retreat to a secondary position: that the D.C. Circuit should make clear to the judge that he can’t demand testimony or evidence from the government about how and why it decided to do an about-face in the case.
“That clearly should be off the table,” Wall said.
However, the lawyer representing Sullivan, Beth Wilkinson, said it was completely premature for the appeals court to start delving into those issues when Sullivan hasn’t even said what he plans to do beyond take briefs and hold a hearing next month.
“There’s no suggestion that the court is going to call witnesses or do anything in the parade of horribles that the government is laying out for you,” she said. “All the court is doing is getting advice.”
Wilkinson also ridiculed the Justice Department’s position that Sullivan is going too far even by scheduling a hearing where he could ask a prosecutor to explain Barr’s decision in more detail.
She scoffed that the government’s position appears to be that “asking the government questions about the motion that it filed … is somehow irreparable harm.”
“If it is,” she added, “that goes on every day of the week.”
Of the three judges hearing the case, Judge Robert Wilkins sounded most skeptical of the positions taken by Flynn and the Justice Department. Wilkins repeatedly suggested that saying there was no role for Sullivan at all would open the door to all kinds of prosecutorial mischief, including allowing improper racial considerations to cause the dismissal of a prosecution.
“If the government doesn’t have to disclose all its reasons, you’d never know it was happening,” said Wilkins, an appointee of President Barack Obama.
Judge Neomi Rao, a Trump appointee, also sounded reluctant to have the appeals court step in at this point. She asked Wall what the “concrete” harm would be to allowing a hearing where Sullivan could question a government attorney.
“What precisely is the problem?” she said.
Flynn is the only former Trump administration official to be charged in special counsel Robert Mueller’s probe — a distinction which gives Flynn’s fate outsized importance to Trump and others eager to discredit the special counsel investigation. Mueller’s team concluded that Russia mounted a massive interference campaign in the 2016 presidential election — and that Trump’s team eagerly capitalized on the effort, even if it didn’t coordinate it with Kremlin agents.
Earlier this week, John Gleeson, a former judge Sullivan appointed to advise him on how to proceed in Flynn’s case, filed a court brief savaging Barr’s decision to abandon the prosecution. In a blistering memo, Gleeson called the Justice Department’s legal arguments “preposterous.”
Flynn pleaded guilty in December 2017 to a single felony false-statement charge stemming from an interview conducted by two FBI agents in his White House office on January 24, 2017, just four days after Trump was sworn-in.
As part of a plea deal with Mueller’s team, Flynn admitted he lied to the FBI when he denied any substantive interactions with the Russian ambassador to the U.S., Sergey Kislyak during the presidential transition. Flynn also conceded that he signed off on false reports to the Justice Department about a $600,000 contract his personal consulting firm took to advance Turkish interests while he was serving as a top foreign policy adviser to the Trump campaign.
But in early 2019, weeks after affirming his guilt under oath, Flynn replaced his legal team and reversed course, contending that he was coerced into his plea as a result of FBI and prosecutorial misconduct. After Sullivan reviewed and scuttled most of Flynn’s allegations, the ex-Trump official moved to formally withdraw his plea earlier this year.
Weeks later, Barr embraced a recommendation to drop the case from the attorney he had assigned to review the matter, contending that the FBI had no valid reason to interview Flynn. The decision, which carried no signatures from the career DOJ prosecutors overseeing the case, prompted howls of protest from many in the legal community and allegations that Barr was using the power of the Justice Department to shield Trump’s political ally.
Sullivan hired Wilkinson for Friday’s hearing at government expense under a federal law that allows the courts to authorize outside lawyers for judges and court personnel involved in litigation related to their official duties. Highly-experienced lawyers are paid $300 an hour, plus expenses, a spokesman for the court system said.