The federal judge presiding over the case of former Trump adviser Michael Flynn has laid out a schedule that would prolong the case for about two more months and perhaps beyond, even though the Department of Justice (DOJ) dropped the case two weeks ago.
U.S. District Judge Emmet Sullivan issued a scheduling order on May 19 that set an oral argument for July 16, when third parties invited by the judge would get a chance to voice their opinions on why the case shouldn’t be dismissed and whether Flynn should be made to explain why he shouldn’t be held in contempt of court.
According to Flynn’s lead lawyer, former federal prosecutor Sidney Powell, Sullivan’s actions are irregular to the point of being eccentric.
“The district judge’s orders reveal his plan to continue the case indefinitely, rubbing salt in General Flynn’s open wound from the Government’s misconduct and threatening him with criminal contempt,” she said in a May 19 emergency petition asking the District of Columbia federal appeals court to intervene.
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 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, Sullivan still hasn’t ruled on the dismissal.
Instead, 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.”
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.
Powell is asking the higher court 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.
“The district court 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,” she said.
Fifteen Republican state attorneys general sided with her on the issue, calling on Sullivan to approve the dismissal “without delay and without irrelevant or personal comment.”
“A judge who abandons the bench for the prosecutor’s table can serve credibly in neither role,” they said in a May 18 brief sent to the court (pdf).
Sixteen former members of the Watergate Special Prosecution Force disagreed in a May 11 brief to the court. Because Flynn pleaded guilty, they say, the process has already moved to sentencing and thus falls under the purview of the judiciary branch.
“There are at least substantial questions as to whether factual representations in the Motion [to dismiss the case] are accurate and whether the Motion is made in good faith and consistent with the public interest,” they said, opining that Sullivan has the right to appoint amici to review the matter.
While the case has been rife with government misconduct, according to Powell, she pointed out that the court is required to assume prosecutors are acting properly, unless there’s “clear evidence to the contrary.”
“There is nothing in this record—much less clear evidence—to undermine the presumption of regularity that attaches to the Government’s Motion to Dismiss,” she said.
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, she said, because of his “manifest confusion about the facts of this case” and because of his decision to open the floor to amici, including “appointing a biased and highly political amicus who has expressed hostility and disdain towards the Justice Department’s decision to dismiss the prosecution.”
She specifically referred to Sullivan’s gaffe during a 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.
Sullivan “is not only biased against Petitioner,” Powell said, “but also revels in the notoriety he has created by failing to take the simple step of granting a motion he has no authority to deny. This is an umpire who has decided to steal public attention from the players and focus it on himself.
“He wants to pitch, bat, run bases, and play shortstop. In truth, he is way out in left field.”
Sullivan and Gleeson didn’t immediately respond to requests for comment.