The federal judge overseeing the Michael Flynn case told an appeals court Monday that he has not decided if he’ll grant the Justice Department’s request to abandon the prosecution.
In a filing with the D.C. Court of Appeals, lawyers for Judge Emmet Sullivan said it was premature for the higher court to intervene because he could ultimately side with Flynn and the Justice Department.
“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,” attorney Beth Wilkinson wrote.
Judge Sullivan was forced to file a legal motion explaining his thinking after Flynn, who briefly served as President Trump’s national security adviser, filed an emergency petition with the appellate court.
The Justice Department last month filed a request to dismiss the false-statement charges filed against Flynn, who had pleaded guilty to the crime in two court proceedings. It was a bombshell reversal for the Justice Department, which had been pursuing the case for three years.
Judge Sullivan tapped a retired New York federal judge to present arguments against dropping the case and review whether Flynn should be held in contempt for perjury.
Flynn’s legal team argued his actions amounted to partisan bias against their clients and asked the appellate court to dismiss the case.
Judge Sullivan said Monday the unusual circumstances surrounding the case required extra scrutiny.
“For now, it suffices to say that the unusual developments in the case provide at least a plausible ‘reason to question’ the ‘bona fides’ of the government’s motion,” he argued in the 46-page filing.
The judge said several issues must be addressed before he decides the Justice Department’s motion. One of the issues is that Flynn has blamed his guilty plea on his former attorneys for providing him with bad advice.
“Judge Sullivan has yet to receive any declarations from Mr. Flynn’s prior counsel; question Mr. Flynn under oath about the withdrawal … or assess his credibility regarding the claims in his declaration,” the filing said.
But Judge Sullivan emphasized in his brief that his review wasn’t finished and he is still weighing whether to grant the Justice Department’s request. He added that if he is allowed to complete his review and if Flynn and the department still oppose it, they could then pursue an appeal.
“If Judge Sullivan’s decision is anything short of what the parties sought, this Court will have an opportunity to review it, without writing on a blank slate,” Sullivan’s attorney wrote.
The case against Flynn stems from the FBI’s 2016 probe into ties between Russia and the Trump campaign, which later morphed into the Mueller probe.
Flynn was questioned in early 2017 about his calls to the then-Russian ambassador. At the time the Justice Department alleged he lied to the FBI agents about his communications with the ambassador.
Although Flynn pleaded guilty, he later recanted that plea and professed his innocence. The Justice Department last month sought to drop the case after two explosive documents surfaced suggesting that Flynn may have been set up by the FBI.
