- The Washington Times - Tuesday, May 19, 2020

Attorneys for President Trump’s former national security adviser Michael Flynn on Tuesday asked a federal appeals court to dismiss the case and remove the judge overseeing it.

Flynn’s lawyers filed an emergency petition asking the D.C. Court of Appeals to grant the Justice Department’s call to end the case because FBI agents improperly targeted Flynn in the Russia probe and lured him into a perjury trap.

Flynn lawyer Sidney Powell also asked the court to remove U.S. District Court Judge Emmet Sullivan from the case and accused the Clinton-appointee of political bias against Flynn.

“The appearance of justice will be best served by having another judge — one who has not implied that [Flynn] is a traitor — conduct any further proceedings in the case,” Ms. Powell wrote referring to Judge Sullivan’s courtroom comments.

During an aborted sentencing hearing in 2018, Judge Sullivan suggested Flynn committed treason in an outburst from the bench.

The petition for dismissal followed Judge Sullivan’s rejection of the Justice Department’s call to abandon the case. Instead, he called for third party submissions about what the court should do in the Flynn case. He also appointed a former New York federal judge to review whether Flynn should be held in contempt.

John Gleeson, the former federal judge tapped to give the case a second look, has openly criticized the Trump administration’s handling of the Flynn case.

“The district judge’s latest actions … bespeaks a judge who is not only biased against petitioner but also revels in the notoriety he has created by failing to take the simple step of granting a motion he has no authority to deny,” Ms. Powell wrote.

Ms. Powell took some hard shots at Judge Sullivan in her brief, painting him as a spotlight-seeking publicity hound because he has not immediately dismissed the Flynn case.

“This is an umpire who has decided to steal public attention from the players and focus it on himself,” she wrote. “He wants to pitch, bat, run bases and play shortstop. In truth, he is way out in left field.”

Ms. Powell also called the judge’s actions to keep the case alive a “usurpation of judicial power” that is “clear and indisputable.” She argued that under a precedent set by the same appeals court in the Fokker Services case, a judge cannot deny a government’s motion to dismiss.

If the D.C. Circuit takes up the case, it will be heard by three judges picked from a pool of seven Democratic appointees and four Republican appointees.

Republicans have rallied behind Flynn and sharply criticized Judge Sullivan.

Senate Majority Leader Mitch McConnell Tuesday called the case “a debacle” and Judge Sullivan’s decisions “shocking.”

“The judge has taken it upon himself to go browsing for other hostile parties. Obviously, that subverts our constitutional order in which the executive alone decides whether to prosecute cases,” the Kentucky Republican said on the Senate floor.

A group of 15 Republican state attorneys general this week filed a motion warning Judge Sullivan to stay out of politics and demanding he drop the case.

They accused the judge of inserting himself into “the Justice Department’s exercise of prosecutorial discretion.”

“The court should grant the motion [to dismiss] without commentary on the decision to charge or not to charge because such punditry disrobes the judiciary of its cloak of impartiality,” the attorneys general wrote.

Flynn pleaded guilty in late 2017 to lying to the FBI about his contacts with the Russian ambassador to the U.S. during the transition.

Although Flynn insisted he was guilty at two separate court hearings, he later jettisoned his high-powered D.C. lawyers and proclaimed his innocence. Flynn then tapped Ms. Powell, a conservative firebrand, to represent him.

Attorney General William Barr earlier this month sought to abandon the Flynn prosecution. He said a review of the case found the FBI had no legal basis to interview Flynn in 2017. Mr. Barr also said that Flynn’s misstatements were not material to the broader Russia probe.

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