The District of Columbia appeals court picked the strongest option to react to a district court judge who has for weeks refused to grant the Justice Department’s motion to dismiss the case against former Trump adviser Lt. Gen. Michael Flynn.
Reeves was only able to find two other cases—one in 2009 and the other in 1992.
“There are most likely more than just those two, but the point is that it is still incredibly rare,” he told The Epoch Times via email.
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.
He’s also signaled he may allow more amici to join the case.
In Reeves’ view, Powell has a “strong” argument for all three of her requests.
The appeals court’s reaction “shows it is deeply troubled by Judge Sullivan’s actions,” he said.
He explained that most writ petitions are denied right away. The fact that the court wants a response “shows it is concerned and wants to hear more about the matter,” he said.
In such situations, the Appeals Court has three options. The first and most common one is to appoint an amicus curiae who would present an argument on behalf of the judge. The second option is to “invite” the judge to address the petition personally.
The most serious option is to order the judge to respond.
That means that the judge (and his clerks) will have to personally “submit written briefing trying to legally justify his refusal to dismiss the Flynn case,” Reeves said.
Moreover, the order included a reference to a 2016 case where the court ruled that a judge has only a “narrow” role when prosecutors send him a motion to dismiss a case.
The case is being handled at the appeals court by a three-judge panel of Karen Henderson, a G. W. Bush appointee; Robert Wilkins, an Obama appointee; and Neomi Rao, a Trump appointee. There was no dissent on the order.
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 plea is legally irrelevant to the case dismissal, according to Powell, because the DOJ based its decision on a lack of materiality, meaning impactfulness of what Flynn said to a legitimate FBI investigation.
It was the government’s job—not Flynn’s—to vouch for materiality, so his plea has no bearing on it, she affirmed.
As the appeals court for the 9th circuit noted in 2009, “it is well established that the government may move to dismiss even after a complaint has turned into a conviction because of a guilty plea.”
“This is not a new principle in our legal system, and among honest attorneys, judges, and legal scholars, it is not subject to any serious debate,” Reeves said.
He went on to note that, “at the end of the day, when all of the politics and emotion are put aside, this is not a very complicated matter.”
“Putting aside Judge Sullivan’s unusual actions in refusing to rule on the motion to dismiss and instead ordering amicus briefing, the DOJ’s motion to dismiss does not actually break any new legal ground in its reasoning,” he said.
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