Former Trump adviser Lt. Gen. Michael Flynn has asked a federal appeals court to order a lower court to accept a request by the Department of Justice (DOJ) to drop the case against Flynn. The DOJ moved to dismiss the case nearly two weeks ago, but the district judge handling it hasn’t made a decision and instead invited—as a “friend of court”—a former judge to come argue against the dismissal.
On May 19, Flynn’s lawyers petitioned the U.S. Court of Appeals for the District of Columbia Circuit to order the District Court to grant the DOJ’s motion to dismiss the case, vacate the appointment of a “friend of court” (amicus curiae), and assign the case to a different judge.
“The district judge in this case has abandoned any pretense of being an objective umpire. … He wants to pitch, bat, run bases, and play shortstop. In truth, he is way out in left field,” the emergency petition states.
Flynn, a former head of the Defense Intelligence Agency (DIA) 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 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.”
Almost two weeks later, District Judge Emmet Sullivan still hasn’t ruled on the dismissal.
Instead, on May 12, he said he will set a schedule “governing the submission of any amicus curiae briefs.”
A day later, he appointed as an amicus 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.”
Gleeson, who was appointed by President Bill Clinton and left the bench for private practice in 2016, had an op-ed published by The Washington Post on May 11 accusing the DOJ of “impropriety,” “corruption,” and “improper political influence” for dismissing the case.
In a May 15 court filing, Gleeson asked for nearly four weeks to brief his arguments to the court. Then, he proposed, the government, the defense, “and any other amici” would have time to file their replies. Gleeson would then have time to file his responses to the replies. The judge should also schedule an oral argument, he said.
Based on the judge’s previous scheduling orders, this process could take months.
‘With Leave of Court’
Flynn’s lawyers, led by former Texas prosecutor Sidney Powell, say that Sullivan has no authority in this instance to deny the DOJ motion to dismiss the case.
Federal Rules of Criminal Procedure say the government can only dismiss charges “with leave of court.” But the District of Columbia appeals court ruled in 2016 that a judge has only a “narrow” role in these circumstances, “primarily to guard against the prospect that dismissal is part of a scheme of ‘prosecutorial harassment’ of the defendant”—a situation in which prosecutors repeatedly file and dismiss charges to harass a person.
“Decisions to dismiss pending criminal charges—no less than decisions to initiate charges and to identify which charges to bring—lie squarely within the ken of prosecutorial discretion,” the court stated.
Powell also argues that Sullivan “has no authority to adopt the role of prosecutor or change the issues in the case by inviting or appointing amici to perform the investigation or prosecution that the court deems appropriate.”
While rules for civil cases allow for the appointment of amici, criminal case rules make no mention of them. This should be interpreted as banning amici in criminal cases, according to Powell.
Sullivan implied in his May 12 order that the civil rules apply to criminal cases, too, but Powell noted that such an interpretation would mean that judges could allow in criminal cases many other measures only available in civil cases, such as class actions “and a multitude of other procedures that no reasonable person would interpret as applying to criminal cases.”
Sullivan’s reference to “criminal contempt for perjury” likely refers to Flynn restating his guilty plea before the judge in 2018. Flynn said he only did so because his lawyers told him to and because he was coerced into a plea by the prosecutor’s threat to charge his son.
“An innocent man has been the target of a vendetta by politically motivated officials at the highest level of the FBI,” Powell said. “The egregious Government misconduct, and the three-year abuse of General Flynn and his family, cry out for ending this ordeal immediately and permanently.”