A top Justice Department lawyer said Tuesday that there is even more to the Michael Flynn legal saga than what has been disclosed to the public.
In oral arguments before the U.S. Court of Appeals for the District of Columbia Circuit, acting Solicitor General Jeffrey Wall said the Justice Department’s decision to drop the Flynn case was based partly on secret evidence.
“The attorney general based that decision or that judgment on the basis of lots of information, some of it is public and fleshed out in the motion and some of it is not,” Mr. Wall told the court.
Mr. Wall argued that the court should immediately dismiss the case against Flynn, who briefly served as President Trump’s first national security adviser before getting caught up in the FBI’s Russia collusion probe. Flynn pleaded guilty twice to lying to the FBI about his contacts with the Russian ambassador in 2017 but later recanted and professed his innocence.
Attorney General William P. Barr this year set off a political firestorm when the Justice Department sought to abandon its three-year prosecution of Flynn. At oral arguments Tuesday, the judges weighed whether the judge overseeing the Flynn case exceeded his authority by not dismissing the case.
The decision to terminate the Flynn case was based in part on bombshell court documents that a U.S. attorney reviewing the case had uncovered.
In the courtroom Tuesday, Mr. Wall suggested that additional materials may have been uncovered but did not say whether the documents may ever be unsealed.
“It may be possible that the attorney general had before him information that he was not able to share with the court and so what we put in front of the court were the reasons that we could, but it may not be the whole picture available to the executive branch,” Mr. Wall said.
The nonpublic information has been uncovered through other investigations, Mr. Wall said without elaborating.
“The attorney general sees this in the context of nonpublic information from other investigations,” he said.
Mr. Barr has said that the review of the Flynn case is part of the broader investigation by U.S. Attorney John Durham into the origins of the FBI’s Russian collusion probe. However, it is not clear whether Mr. Wall was specifically talking about the Durham probe.
The Justice Department this year turned over two explosive FBI documents to Flynn’s legal team. The documents have somewhat changed the narrative in the case, and Republicans now say Flynn was ensnared in a perjury trap.
The documents revealed that Peter Strzok, the now-disgraced, anti-Trump former head of FBI counterintelligence, ordered the Flynn investigation to remain open even after agents uncovered no wrongdoing.
A handwritten note written by top FBI brass questioned whether the goal of interviewing Flynn was to “get him to lie so we can prosecute him or get him fired.”
Another handwritten note, allegedly written by top former FBI official Bill Priestap, suggested that agents planned to get Flynn to admit to breaking the Logan Act, an obscure law from 1799 that bans U.S. citizens from negotiating with foreign countries.
After the documents were made public, Mr. Barr sought to dismiss the case, but U.S. District Judge Emmet Sullivan did not immediately grant the Justice Department’s request.
Instead, Judge Sullivan appointed a retired federal judge to argue against the Justice Department and weigh whether or not Flynn should face perjury charges for changing his guilty plea.
Flynn’s legal team filed a motion with the D.C. Circuit asking for an immediate dismissal of the case. A three-judge panel ruled 2-1 that Judge Sullivan overstepped his authority and must dismiss the case.
A majority of judges on the same court vacated the panel’s decision last month and voted to hold a rehearing before 10 of the 11 judges. One judge recused himself because he previously worked in the Trump White House.
The appeals court judges will rule to allow the case to be terminated or allow Judge Sullivan, who is overseeing the Flynn case, to hold additional hearings.
Judge Thomas Griffith said Judge Sullivan appeared to be “educating” himself by holding a hearing on the Justice Department’s request to drop the case.
“The judge has to do some thinking about it, right? The judge is not simply a rubber stamp,” he said.
Other judges zeroed in on whether Judge Sullivan did anything improper by bucking the Justice Department.
“It is the core of any judge’s job to assess cases using the best arguments that can be made on both sides,” said Judge Cornelia Pillard.
“And your position is that ‘No, he can’t both hear both sides of the law and he has to drop the case like a hot potato without adversary closing argument,’ ” Judge Pillard told Flynn’s attorney, Sidney Powell.
Mr. Wall insisted that Judge Sullivan exceeded his powers.
“Once the government decides to drop a prosecution, that’s it,” he said. “Gen. Flynn can invoke separation of powers to protect his liberty. This should go no further.”
Ms. Powell accused Judge Sullivan of “usurping” prosecutors and having the “now-glaring appearance of bias.”
She said Judge Sullivan “went through the guardrails, and he has to be reined back in.”
Beth Wilkinson, a Washington lawyer representing Judge Sullivan during Tuesday’s hearing, said it was premature for the appellate court to step in.
Ms. Wilkinson described the appointment of a retired judge to review the case “as getting advice.”
“The judge has not asked any questions of the government or anyone else,” she said. “No fact-finding has been requested. After he reads the briefs, there may be little left to ask.”
• Jeff Mordock can be reached at email@example.com.
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