A majority of judges on the appeals court for the District of Columbia voiced unwillingness to stop a lower court judge from questioning the Department of Justice (DOJ) about dropping its charges against former Trump adviser Michael Flynn.
During the Aug. 11 virtual hearing, the judges pressed the DOJ’s and Flynn’s lawyers on why they should intervene when the district judge, Emmet Sullivan, hasn’t yet ruled on the dismissal of the charges.
While the lawyers seemed able to address most of the judges’ concerns, there were still signs of disagreement.
If the judges allow Sullivan to proceed, it would likely further prolong a case that the DOJ dropped more than three months ago.
Flynn, a retired three-star Army general, pleaded guilty to lying to the FBI in 2017, but later moved to withdraw the plea, saying he was misled and pressured into it.
The DOJ moved to dismiss the case in May after a review highlighted documents indicating that the FBI didn’t have a proper investigative purpose to interview Flynn and may have done so only to elicit false statements from him.
A three-judge panel of the appeals court ordered Sullivan to accept the dismissal in June, after which he appealed for a rehearing before the full court of 10 judges (one additional judge recused himself).
Sidney Powell, Flynn’s lead lawyer and a former federal prosecutor, argued that Sullivan doesn’t have any authority to question the dismissal in a situation in which both the prosecutors and the defendant are on the same page and the DOJ submitted extensive explanation for dropping the case.
Some of the judges voiced concerns about future defendants asking for appeals court intervention any time they think a district judge plans to do something impermissible, even before the judge has actually done it.
Representing the DOJ, Principal Deputy Solicitor General Jeffrey Wall said the core issue is separation of powers under the Constitution, which leaves it to the executive branch to bring or drop prosecutions. Even the process of putting the DOJ on the spot about its reasons for dropping the case would intrude on the executive’s discretion, even if Sullivan eventually grants the motion, he said.
Some judges also probed under what circumstances a judge could question a case dismissal, creating hypothetical scenarios for Powell and Wall to address. One scenario involved a situation in which the defendant hands a bribe to the prosecutor in the presence of the attorney general directly in front of the judge in a courtroom.
Wall pointed out that the extreme nature of the hypothetical highlighted how far removed the discussion was from the facts of Flynn’s case.
Sullivan should be ordered to accept the dismissal, Powell said, and the case should be reassigned to a different judge because by petitioning for the rehearing, Sullivan has made himself akin to a party in the proceeding and created an appearance of partiality.
In absence of an order to accept the dismissal, Wall said, the court should instruct Sullivan about his limited role, bar him from probing for additional facts, and make him rule quickly.
Sullivan’s attorney, Beth Wilkinson, said that the judge doesn’t plan to ask impermissible questions and the government can refuse to answer anyway. She asserted he should be allowed to rule on the case and no instructions are necessary. She acknowledged that if Sullivan was to deny the motion, he would proceed to sentence Flynn and the DOJ and Flynn would likely win on an appeal.
She said Sullivan shouldn’t be disqualified because the three-judge panel ordered him to respond and his petition for rehearing merely suggested the full court should pick up the matter.
Wall argued “that there is now at least a question about appearance of impartiality” because Sullivan issued his petition without being invited by the full court to do so.
Wilkinson downplayed any harm prolonging the case causes to Flynn, saying he’s not in custody and was even allowed to travel overseas.
Powell noted that Flynn has been dragged through the process now for four years, has spent millions of dollars, and addressing Sullivan’s request for rehearing alone cost Flynn 1,000 lawyer hours.
Wall pointed out that Sullivan’s previous actions, including briefs to the appeals court, indicated that he planned an intrusive questioning of the DOJ’s reasons for dropping the case.
Wilkinson has since backed away from those representations and suggested “there’s not much the court can ask and we [the DOJ] can decline to answer,” Wall said.
“[Sullivan’s] counsel seems to be defending the process on the grounds that it might be meaningless. I think that tepid defense gives away the game.”
He said either Sullivan in fact wants to intrude on the executive branch or he “can’t possibly call into question” the dismissal on its face. Either way, it means the appeals court should order him to dismiss.
Seven of the 10 judges who heard the case on Aug. 11 were appointed by Democratic presidents.
The process with Flynn, former head of the Defense Intelligence Agency during the Obama administration and former national security adviser to President Donald Trump, has been marked by dozens of lies, contradictions, and unusual occurrences.
In June, documents were released indicating that in early 2017, both then-President Barack Obama and Vice President Joe Biden were personally involved in the case.
