Appeals Court Gives Judge 10 Days to Respond to Flynn’s Call for Intervention

May 21, 2020 Updated: May 21, 2020

The District of Columbia federal appeals court has given District Judge Emmet Sullivan 10 days to respond after former Trump adviser Lt. Gen. Michael Flynn appealed to the higher court for an intervention, alleging that Sullivan is breaking rules and precedent in Flynn’s case.

In its May 21 order, the higher court also invited the government “to respond in its discretion within the same ten-day period.”

The case is being handled by a three-judge panel of Karen Henderson, a G. W. Bush appointee; Robert Wilkins, an Obama appointee; and Neomi Rao, a Trump appointee.

Flynn, a former head of the Defense Intelligence Agency and former national security adviser to President Donald Trump, pleaded guilty in 2017 to one count of lying during an FBI interview. In January, the retired Army three-star general disavowed the plea and asked the court to allow him to withdraw it.

The Department of Justice (DOJ) moved to drop Flynn’s case on May 7, saying the FBI interview wasn’t based on a properly predicated investigation and “seems to have been undertaken only to elicit those very false statements and thereby criminalize Mr. Flynn.”

Sullivan, however, has so far refused to affirm the dismissal and has instead laid out a schedule that would prolong the case for possibly months to come. He’s appointed former federal Judge John Gleeson as an amicus curiae (Friend of Court) “to present arguments in opposition to the government’s Motion to Dismiss,” as well as to “address” whether the court should make the defense explain why “Flynn should not be held in criminal contempt for perjury.”

He’s also signaled he may allow more amici to join the case.

Flynn’s lawyers, led by former Texas prosecutor Sidney Powell, asked the higher court on May 19 to order Sullivan to accept the case dismissal, cancel the Gleeson appointment, and assign the case to another judge.

She’s argued that, based on precedent, judges only have a “ministerial” role to affirm the prosecutors’ motion to dismiss, as it’s solely the power of the executive branch, not the judiciary, to prosecute or not to prosecute.

Powell further argues that Sullivan is barred from appointing amici because process rules only delineate that option in civil cases and make no mention of it in criminal ones.

Sullivan’s reference to contempt for perjury likely refers to Flynn’s reiterating his guilty plea before the judge in 2018. Flynn said he only did so because his lawyers urged him to and because he was coerced into making the plea by the prosecutors’ threat to charge his son.

“The district judge in this case has abandoned any pretense of being an objective umpire—going as far as to suggest that a criminal defendant who succumbs to a coerced and unfair plea bargain should be prosecuted for contempt,” Powell said in Flynn’s appeal.

Sullivan should be taken off the case, because of his “manifest confusion about the facts of this case,” she said, pointing to his gaffe during the Dec. 18, 2018, sentencing hearing, when he questioned the prosecutors about whether they considered charging Flynn with treason.

“Arguably, you sold your country out,” he told Flynn, before apologizing for getting the facts of the case wrong.

She also criticized Sullivan for “appointing a biased and highly political amicus [Gleeson] who has expressed hostility and disdain towards the Justice Department’s decision to dismiss the prosecution.”

Gleeson co-authored a May 11 Washington Post op-ed accusing the DOJ of “impropriety,” “corruption,” and “improper political influence” for dismissing the Flynn case.

Gleeson was appointed to the bench by President Bill Clinton and left in 2016 to join the Debevoise & Plimpton law firm. Another lawyer at the firm and co-author of the op-ed, David O’Neil, represented Sally Yates (pdf), the former deputy attorney general who was fired for refusing to enforce Trump’s executive order blocking immigration from terror-prone countries.

Follow Petr on Twitter: @petrsvab