A federal appeals court in Washington on Friday began reviewing the Justice Department’s effort to order a judge to immediately dismiss its prosecution of President Trump’s former national security adviser Michael Flynn in a politically charged case that tests the power of the independent judiciary.
Flynn, joined by the Justice Department, wants the appeals court to force U.S. District Court Judge Emmet G. Sullivan to quickly close the case and put a stop to Sullivan’s examination of the government’s unusual decision to drop the charges against the retired three-star general.
The appeals court hearing Friday comes days after a former judge Sullivan appointed to argue against the Justice Department characterized its plan to abandon the case as a “gross abuse of prosecutorial power.”
The highly unusual parallel case before the U.S. Court of Appeals for the D.C. Circuit raises questions about the scope of judicial power to check the Trump administration and whether a judge can sentence a defendant the government no longer wants to prosecute. The three-judge panel reviewing the matter on Friday is made up of Judges Karen Henderson, Robert Wilkins and Neomi Rao.
Sullivan refused to sign off last month on the Justice Department’s request to withdraw the charges against Flynn, and instead appointed former New York federal judge John Gleeson to argue against the department’s position to help him decide how to proceed. Gleeson issued a stinging rebuke in a brief filed Wednesday, writing that the “government has engaged in highly irregular conduct to benefit a political ally of the President.”
Sullivan scheduled a July 16 hearing on the Justice Department’s controversial move for dismissal. But Flynn’s lawyer Sidney Powell took the rare step of asking the appeals court to get involved midstream to force Sullivan’s hand, and accused Sullivan of bias. Solicitor General Noel Francisco joined Flynn in arguing that the judge has no power to second-guess the government’s prosecution decisions and said it would be unconstitutional for the court to refuse to dismiss when the defendant and the prosecution are in agreement.
After the appeals court agreed to review Sullivan’s actions, the judge hired a high-profile trial lawyer, Beth Wilkinson, to explain the judge’s reasons for investigating whether dismissing the case is legally appropriate and in the public interest.
Before the Justice Department’s reversal in May, the government withdrew a request for leniency and said it no longer sought a sentence at the “low-end” of the zero-to-six-month range for Flynn. Instead of proceeding to sentencing, Attorney General William P. Barr ordered a review of Flynn’s case, which found the FBI had no valid basis to question Flynn, so any lies he told were irrelevant to any crime.
In setting up a process to review the department’s actions, Sullivan also asked Gleeson — a former mob prosecutor — to examine whether Flynn may have committed perjury while pleading guilty to a crime that he and the Justice Department now say is no longer a crime. Gleeson advised Sullivan in his filing this week not to impose contempt of court penalties on Flynn, but to continue to the sentencing phase of the case.
Prosecutors have broad authority to make charging decisions, but federal rules also require prosecutors to get permission from the presiding judge to formally dismiss charges. In this case, Flynn admitted lying before two different judges and told Sullivan at a 2018 hearing that no one had coerced him to admit his guilty and that he had no intention of taking back his plea.
Federal rules give Sullivan a narrow window to consider whether dismissing the case is in the public interest. Legal experts and retired judges disagree about the scope of Sullivan’s authority, offering different interpretations of a 2016 D.C. Circuit opinion that noted the judiciary generally lacks authority to “second-guess” charging decisions by prosecutors.
Sullivan’s position has drawn support in court filings from outside groups including a nonpartisan organization of former state and federal officials and a group of two dozen former federal judges appointed by presidents from both parties.
The retired judges said Sullivan has an obligation to examine the government’s change of heart and has an independent judicial responsibility to defend the public interest. Flynn’s legal team “is wrong to suggest that the district court was required to simply ‘rubber stamp’ the government’s contradiction, not only of the government’s own prior position, but of the law of the case,” according to the court filing.
On the other side, Republican members of Congress and a group of prominent federal lawyers said there is no role for the judge to play when the government and the defendant are on the same side.
The Justice Department has fully explained why it no longer believes the evidence supports a criminal conviction, they said. “Prosecutors have discretion to drop charges regardless of the guilt of a defendant or the strength of the evidence,” according to the filing from former government lawyers that includes Kenneth W. Starr, the former Whitewater independent counsel who was part of Trump’s legal team at his Senate impeachment trial in January.
