In the lead-up to a crucial hearing in the case of Lt. Gen. Michael Flynn, his lawyers and the Department of Justice (DOJ) excoriated a federal judge for trying to delay the case’s resolution and usurp prosecutorial power.
“The game is over and this Court should order the umpire to leave the field,” Flynn’s lead lawyer, former federal prosecutor Sidney Powell, said in a brief to the District of Columbia appeals court, asking it to rein in District Judge Emmet Sullivan, who’s presided over Flynn’s case.
The court set a hearing in the case for June 12.
Flynn, a former head of the Defense Intelligence Agency during the Obama administration and former national security adviser to President Donald Trump, pleaded guilty in 2017 to one count of lying during an FBI interview. In January, he disavowed the plea and asked the court to allow him to withdraw it.
The DOJ moved to drop Flynn’s case on May 7, saying the FBI didn’t have a proper reason to interview Flynn in the first place and seemed to only do so “to elicit those very false statements and thereby criminalize Mr. Flynn.”
Powell wants the appeals court to order Sullivan to accept the case dismissal, end further proceedings the judge has embarked on, and remove him from the case.
Sullivan hasn’t yet ruled on the dismissal. Through his lawyer, Beth Wilkinson, he argued in a June 10 brief that the appeals court should give him more time, as district judges should be allowed “to assess the contours of their authority and review the facts” when the DOJ sends them a motion to dismiss a case.
Powell and the DOJ disagreed, saying there’s no reason for further inquiry because the judge doesn’t have the authority to second-guess the DOJ’s prosecutorial decision, which the Constitution grants to the executive branch.
“Without ‘clear evidence’ of a ‘betrayal of the public interest,’ such as bribery or abject fecklessness, or a motion to dismiss that ‘make[s] a mockery of judicial powers,’ no court can ‘scrutinize and countermand the prosecution’s exercise of its traditional authority over charging and enforcement decisions,’” Powell said in the June 10 brief, citing a 2016 case that set a precedent for what federal judges in D.C. can and cannot do in similar circumstances.
In its June 10 brief, the DOJ put forth its own citation of the precedent, saying “that district courts lack power ‘to scrutinize the prosecution’s discretionary charging decisions,’” and “that the Executive may exercise ‘authority over criminal charging decisions … without the involvement of—and without oversight power in—the Judiciary.’”
“The government has no obligation to persuade the district court—through the submission of evidence—that it has correctly assessed the interests of justice and the strength of the charges” in its decision to dismiss a case, the DOJ said.
Moreover, both Powell and the DOJ pointed out that Sullivan went much further than simply taking his time.
On May 13, he appointed as an amicus curiae (friend of the court) former federal Judge John Gleeson “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.”
Sullivan thus suggested that Flynn’s withdrawal of his plea could be treated as perjury that the court may punish by charging him with contempt of court.
But the judge’s argument “is silent on the long line of Supreme Court precedent establishing that perjury, in itself, is not criminal contempt,” the DOJ said.
Gleeson, who was appointed by President Bill Clinton and left the bench for private practice in 2016, accused the DOJ in a May 11 Washington Post op-ed of “impropriety,” “corruption,” and “improper political influence” for dismissing the Flynn case.
Gleeson doubled down on those accusations in a June 10 brief to the district court (pdf), saying the DOJ committed “a gross abuse of prosecutorial power, attempting to provide special treatment to a favored friend and political ally of the President of the United States.”
He went as far as recommending that Sullivan needn’t go through the process of determining whether Flynn committed perjury or not, but simply assume so and proceed to sentencing, “factoring the defendant’s contemptuous conduct into the appropriate punishment.”
Powell pointed out that Gleeson has been rebuked himself as a judge for “aggrandizing his own role” in second-guessing an agreement between prosecutors and a defendant to defer prosecution.
The Court of Appeals for the Second Circuit reminded Gleeson in that case that the government is granted “the presumption of regularity” in prosecutorial decisions, meaning the judge can’t just proceed “to imagine circumstances” under which the government’s decision was inappropriate and then probe the government to find out if those figments of imagination are real.
While Gleeson accused the DOJ of treating Flynn’s case differently from others, Powell pointed out that the DOJ “previously decided not to prosecute former [FBI] Deputy Director Andrew McCabe—despite a criminal referral of multiple perjury counts from the Inspector General, sworn and transcribed false testimony, and the full protection of Mr. McCabe’s rights, including advice of counsel.”
Gleeson and other of Sullivan’s backers “had laryngitis that day,” she quipped.
Both Powell and the DOJ agreed that the core fact is that the DOJ uncovered new evidence in the case as the result of a review ordered in January by Attorney General William Barr.
The evidence indicated the FBI interviewed Flynn to catch him in a lie, which isn’t a proper investigative purpose.
“It is decidedly in the public interest that misconduct of rogue federal agents be rectified and false evidence not provide grist for prosecutions,” Powell said.
The appeals court’s intervention is “necessary to put an end to the district court’s ‘takeover’ of this case,” the DOJ said.