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.
Lawyers for Judge Emmet Sullivan said it was premature for the Circuit Court of Appeals for the District of Columbia 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.
Moments after Judge Sullivan’s filing, the Justice Department filed its own motion arguing that he doesn’t have the authority to dismiss the case.
“Simply, put the district court has no authority to reject the Executive’s conclusion that those reasons justify a dismissal of the charges,” department lawyers wrote. “The government’s detailed explanation is far more than ‘a mere conclusory statement, amply satisfying any procedural requirement.”
Flynn, who briefly served as President Trump’s national security adviser, pleaded guilty to lying to federal investigators, then sought to withdraw his plea as new information about the investigation and prosecution came to light. The Justice Department has sided with him in trying to drop its case, but Judge Sullivan ordered more arguments, signaling he isn’t yet ready to accept the decision of both the prosecution and the defense.
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 because he admitted to guilt in two court proceedings, yet now says he isn’t guilty.
Flynn’s legal team says Judge Sullivan’s actions show partisan bias against their client and asked the appellate court to dismiss the case.
The court then had Judge Sullivan file Monday’s document explaining his thinking.
Judge Sullivan says the unusual circumstances surrounding the case require 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.
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.