A federal appeals court appears poised to block an effort by former national security adviser Michael Flynn to immediately dismiss the criminal charge against him, raising the specter that the politically explosive case could continue to make headlines in the lead-up to the Nov. 3 election.
The court, in an unusual full-bench session Tuesday, sounded sharply skeptical about arguments by Flynn’s attorney and the Justice Department that U.S. District Court Judge Emmet Sullivan abused his authority by scheduling a hearing on efforts to drop the case, which came despite Flynn twice pleading guilty to lying to the FBI.
If the appeals court rules against Flynn, it’s likely to create a vivid pre-election spectacle pitting the former Trump national security adviser against FBI agents and prosecutors he has accused of misconduct, allegations echoed often by President Donald Trump. It would also crimp Trump’s ability to turn to Flynn as a pre-election surrogate.
Most of the ten D.C. Circuit judges who heard arguments seemed to agree that Flynn’s prosecution on a felony charge of lying to the FBI is likely to be thrown out as a result of the Justice Department’s abrupt decision to drop the case earlier this year. But the en banc court sounded poised to part with a smaller appeals court panel that sided, 2-1, with Flynn in June.
A clear sign that Flynn’s drive to shut down his criminal case was running into trouble Tuesday came when Judge Thomas Griffith — the sole Republican appointee on the en banc court who had not already ruled in Flynn’s favor — suggested he believes a court rule the Justice Department seized on to dismiss the case does give judges some role in making sure a case isn’t dropped for an illegitimate, political reason.
“Favoritism for a politically powerful defendant. Isn’t that one of the purposes?…That seems to be right in the wheelhouse of what is going on here,” Griffith said.
The comment from the George W. Bush appointee came after a contentious exchange with Flynn attorney Sidney Powell about whether Sullivan’s role in deciding the government’s motion was a substantive one or not.
“Is it ministerial or not? Yes or no?” Griffith asked.
“It is pretty ministerial,” Powell replied haltingly.
“Well, Ms. Powell, that’s not helpful,” Griffith responded. “It’s not ministerial, you know that…The judge has to do some thinking about it. He’s not simply a rubber stamp.”
Flynn and the Justice Department did not appear to do any better with any of the other judges, aside from the two GOP-appointed appeals judges who ruled for Flynn earlier this year.
Judge Nina Pillard aggressively challenged acting Solicitor General Jeffrey Wall, noting that Flynn pleaded guilty in the case and later reaffirmed that plea, before Attorney General William Barr ordered a reversal in May and moved to drop the case.
“What self-respecting Article II judge would simply jump and enter an order without doing what he could do to understand both sides?” said Pillard, an appointee of President Barack Obama. “It’s just really striking and remarkable — what is the government worried about?….He only wanted an argument.”
Wall insisted that any hearing aimed at probing the government’s reasons would intrude on the executive branch’s constitutional power to decide which prosecutions to pursue and which to drop.
“On these facts, I don’t think there is an appropriate hearing that can be had,” the acting solicitor general said. Sullivan “wants a hearing to probe our motives. No sort of hearing like that is going to be permissible,” Wall added.
On several occasions, Wall seemed to acknowledge that the arguments from the government and Flynn were not gaining traction with the judges. At a couple points, the Justice Department attorney moved to a fallback position, urging the judges to set clear limits on what Sullivan can do at the hearing he plans to hold on the government’s motion.
Though he at times seemed resigned to taking a loss, Wall lodged several arguments that offered insight into the Justice Department’s view of the Flynn case. He raised the specter that Barr might be privy to secret information about the reasons for dismissing the case that he isn’t allowed to tell the court, although it wasn’t entirely clear whether Wall was confirming that had transpired in this instance.
“The AG sees this in the context of non-public information from other investigations,” Wall said. “It may be possible the attorney general had before him information that he was not able to share with the court. We put in front of the court the reasons that we could but it may not be the whole picture available to the executive branch.”
Wall also conceded that the Justice Department’s position is that even in hypothetical cases of egregious criminal conduct by a prosecutor, a judge is not permitted to probe the rationale for a decision to drop a prosecution.
Sullivan’s attorney, Beth Wilkinson, faced somewhat friendlier questioning from the judges, who pressed her on what Sullivan viewed as the appropriate role of his court in assessing the effort to dismiss the case.
Wilkinson repeatedly emphasised that Sullivan simply wants to hold a hearing and accept briefs from the parties. She described as “speculation and fear” the repeated alarms raised by Flynn and the Justice Department about what questions Sullivan might pose.
The timing of the next steps in the case could dramatically alter the political impact of Flynn’s legal predicament.
A decision soon in Flynn’s favor could free the former Defense Intelligence Agency chief up to become a boisterous late-campaign surrogate for Trump, who has blasted Flynn’s prosecution as corrupt and pledged to welcome him back into his orbit.
However, a quick ruling against the former aide would free Sullivan to proceed with his plan to hold an attention-grabbing hearing where a former federal judge Sullivan selected–John Gleeson–would argue against the Justice Department’s motion to drop the case, while Flynn’s lawyers seek to air their claims that he was entrapped by politically motivated FBI officials and denied exculpatory evidence for years by deputies to special counsel Robert Mueller.
Such a hearing would almost certainly become a proxy fight in the partisan combat over whether Mueller’s probe was a diligent inquiry into Russian interference in the election and malfeasance by Trump allies or whether it was a “witch hunt” based on flimsy evidence and led by biased investigators.
Powell quickly alluded to the political polarization surrounding the case, referring in her opening statement to Sullivan’s handling of the matter as displaying “the now-glaring appearance of bias to millions of citizens.”
Though Trump has repeatedly assailed the prosecution as corrupt, he has opted against clemency so far, preferring to let the matter wind through the courts for years while sniping from afar.
The en banc hearing is the latest anomaly in Flynn’s byzantine legal saga that has stretched from August 2016 — when the FBI opened an investigation into his links to Russia — to his fateful January 2017 interview with the FBI to his December 2017 guilty plea and cooperation with federal investigators.
Sullivan was prepared to sentence Flynn in December 2018 and indicated that a jail term was likely, despite prosecutors’ suggestion that a term of probation would be acceptable. The judge cited Flynn’s admission, part of his plea agreement, that he worked as a paid agent of the Turkish government during the 2016 campaign without disclosing it. But rather than impose a sentence, Sullivan granted Flynn more time to cooperate with prosecutors pursuing a case against his former business partner.
Soon after the aborted sentencing hearing, Flynn fired his legal team and hired Sidney Powell, a Fox News fixture who had repeatedly attacked the Mueller investigation. Powell soon asserted that Flynn was the victim of massive abuses by the FBI and prosecutors, claiming they withheld exculpatory evidence and essentially entrapped Flynn into a false statements charge, later pressuring him into a guilty plea.
Earlier this year, Flynn moved to withdraw his guilty plea and was soon aided by DOJ’s decision to drop the case. But Sullivan, citing the traditional discretion of the court in these matters, opted against immediate dismissal and instead appointed an outside adviser, Gleeson, to help him consider whether he must grant the dismissal or has alternative options amid the questions about political interference in the case.
Flynn’s attorneys quickly petitioned the appeals court to force Sullivan to drop the case, and a split three-judge panel ruled in their favor in June. But Sullivan asked the full bench of the appeals court to reconsider the matter, leading to Tuesday’s hearing.