Flynn Judge Asks Higher Court to Allow More Time for Decision

June 1, 2020 Updated: June 1, 2020

The federal judge presiding over the case of former Trump adviser retired Lt. Gen. Michael Flynn has told the District of Columbia Circuit Court of Appeals it should stay out of his decision to prolong the case even after the Department of Justice (DOJ) dropped the case against Flynn almost a month ago.

Beth Wilkinson, lawyer for District Judge Emmet Sullivan, said the DOJ motion to dismiss the case “does not conclusively establish that it ‘acted properly’” in seeking the dismissal. Because Sullivan hasn’t yet decided whether to accept the dismissal, Flynn isn’t entitled to a higher court’s intervention, she argued in a June 1 response to the appeals court’s order.

Sidney Powell, a former federal prosecutor and lawyer for Flynn, said Wilkinson’s response “ignores the true facts and the applicable law,” in a response emailed to The Epoch Times.

Sullivan hired Wilkinson after the higher court took the rare move of ordering him on May 21 to respond within 10 days about why he hasn’t approved the motion to drop the Flynn case.

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 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 has so far refused to affirm the dismissal and has instead laid out a schedule that would prolong the case for possibly months. He’s appointed former federal Judge John Gleeson as an amicus curiae (friend of the 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 Powell, on May 19 filed a petition for a writ of mandamus—a request to the higher court to order Sullivan to accept the case dismissal, cancel the Gleeson appointment, and assign the case to another judge.

Wilkinson is arguing that the DOJ motion to dismiss is so unusual, the judge needs more information to evaluate it.

Among her arguments, she said that the motion included no “affidavits or declarations,” was “signed by the Acting U.S. Attorney alone, with no line prosecutors joining,” and didn’t address other allegedly false statements of Flynn’s included in his statement of offense.

Missing from Wilkinson’s argument is any mention of the documents the DOJ cited as a reason for dismissing the case.

The documents were revealed by Jeffrey Jensen, U.S. attorney for the Eastern District of Missouri, who was directed in January by Attorney General William Barr to perform a review of the case.

The documents showed the FBI was closing the Flynn investigation on Jan. 4, 2017—nearly three weeks before agents came to interview him.

A number of FBI and DOJ officials involved at the time, all of whom have since left their posts, were interviewed by Congress and the FBI about the Flynn case, but none of them could articulate why exactly was the FBI still investigating Flynn at the time of the interview.

“The Government cannot explain, much less prove to a jury beyond a reasonable doubt, how [Flynn’s] false statements are ‘material’ to an investigation,” the DOJ motion to dismiss said.

Wilkinson further focused on the fact that Flynn reiterated his guilty plea multiple times and that Sullivan should be allowed to “conduct investigations as necessary” into whether Flynn should be held in contempt of court for disavowing the plea.

But “a motion to withdraw a guilty plea cannot be grounds for contempt, as the district court’s own rules allow it,” said appellate attorney John Reeves, former assistant Missouri attorney general, in an email to The Epoch Times.

Moreover, the plea is legally irrelevant to the case dismissal, according to Powell, because Flynn was in no position to say what was and wasn’t material to a legitimate FBI investigation.

“He had to accept on faith that the questions [the FBI asked him] were ‘material,’” she said in the petition.

Powell has argued the judge doesn’t have a legal authority to delay accepting the dismissal. His role is merely “ministerial” and mainly in place as a safeguard from prosecutorial harassment, where the government dismisses a case that doesn’t go well for it only to charge the person again later.

That’s not the case here, because the DOJ moved to dismiss with prejudice, meaning the case can’t be brought again.

Wilkinson argues that the judge also needs to consider whether the dismissal “adequately protects the public interest,” citing the 1974 case of United States of America v. Robert Louis Ammidown.

In that case, however, the ruling was non-binding and the court has since ruled in a way that “has effectively discarded” it, Reeves wrote in a May 29 amicus brief to the appeals court.

He also rebutted Wilkinson’s argument that Sullivan has more say in the case because it was already in the sentencing stage.

“The Government has complete control over the case until the court enters a ‘final judgment,’ and a ‘final judgment’ does not occur until the court imposes a sentence, which it has NOT done in this case,” he said.

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