WASHINGTON — A federal appeals court grilled former National Security Adviser Michael Flynn’s lawyer about his claim that a trial-court judge has no choice but to grant the U.S. Justice Department’s surprise motion to dismiss the criminal case.
During a rare review by the full appellate panel, most of the judges at the proceeding on Tuesday posed questions suggesting the trial judge can decide whether to toss the case against Flynn, a high-profile ally of President Donald Trump. Flynn argues the court’s role is “ministerial” and that it must defer to the government.
“The judge is not simply a rubber stamp,” U.S. Circuit Court Judge Thomas B. Griffith said during the hearing in Washington, as he questioned Flynn’s lawyer, Sidney Powell. Griffith was appointed to the bench by President George W. Bush.
U.S. District Judge Emmet Sullivan, who presided over the case and had accepted Flynn’s guilty plea for lying to federal agents, argued through his own lawyer that he should be allowed to question the Justice Department about its reasons for dismissing the case.
A former judge named by Sullivan to argue against dismissal said the government’s decision to abandon the case is a corrupt effort to help an ally of the president, who has repeatedly claimed the prosecution is part of a “deep state” effort to undermine his administration.
A three-judge panel of the federal appeals court in Washington initially denied Sullivan’s request in June and ruled he must dismiss the case, handing Flynn and the government a major victory. But the full appeals court granted the trial judge’s request for a rare “en banc” rehearing before a larger panel of judges.
Sullivan’s lawyer, Beth Wilkinson, said the government’s challenge is premature because Sullivan may simply rule in their favor and dismiss the case after holding a hearing.
“The district court is doing what district court’s do — preparing to rule on a motion,” Wilkinson said. “No fact finding has been requested and briefing by the parties has not finished. Once done, there may be little left to discuss at the hearing.”
Flynn pleaded guilty in the early days of the Russia investigation. He sought to withdraw his plea and dismiss the case before the Justice Department said it was walking away from the prosecution.
John Gleeson, the lawyer appointed by Sullivan to argue against dismissal, said the government’s motion was improper and should be denied.
On Tuesday, several of the appellate judges noted that even if Sullivan denies the DOJ’s dismissal request, Flynn can still file an appeal that may succeed.
One of the appellate judges, Robert L. Wilkins, asked Flynn’s defense attorney a hypothetical question: If a group of nuns approached the court to say they had video footage of a prosecutor taking a bribe from a defendant to dismiss a case, should that judge be allowed to investigate a motion to dismiss?
Even in such a case, Flynn’s attorney said, a judge would have no choice but to dismiss and should instead refer the matter to the Justice Department for prosecution of the prosecutor.
“He cannot go behind the prosecutors’ decision to dismiss a case,” Powell said. “These are completely unprecedented proceedings, and the reason they are is because they never should have happened,” she said later.
Deputy U.S. Solicitor General Jeff Wall told the court he agreed with Powell’s argument that Sullivan should be pulled off the case due to an appearance of bias.
Sullivan has shown “a level of investment in the proceedings that is problematic,” Wall said.
Wall added that Wilkinson appeared to be walking back her argument by saying Sullivan just wants to ask a few questions about the motion to dismiss at a hearing rather than conduct fact finding and call witnesses, as earlier briefs in the case had suggested might happen.
“That tepid defense gives away the game,” Wall said.
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