The attorney for former Trump adviser Michael Flynn urged the federal appeals court in Washington on July 20 to deny a rehearing request that would further extend the case against Flynn, which the Department of Justice (DOJ) requested to drop more than two months ago.
District Judge Emmet Sullivan, who presides over the Flynn case, filed the rehearing request after the appeals court’s three-judge panel ordered him last month to grant the DOJ’s motion to dismiss the case.
On July 9, Sullivan asked through his lawyer, Beth Wilkinson, for the full 12-judge panel of the appeals court to review the order. The day after, the court put the order on hold and ordered Flynn to respond.
“The district court has hijacked and extended a criminal prosecution for almost three months for its own purposes,” the court filing says.
Flynn, the 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 lying to the FBI.
In January, he moved to withdraw his plea. In May, the DOJ moved to dismiss the case after a review uncovered documents suggesting the FBI questioned Flynn solely to elicit false statements from him.
Sullivan didn’t grant the DOJ motion. Instead, he suggested he would allow third parties to weigh in on the dismissal. He also denied Flynn’s motion that argued against third-party arguments in the case.
Flynn responded by asking the appeals court for an extraordinary intervention.
Sullivan doubled down and appointed former federal Judge John Gleeson as an amicus curiae (friend of court), tasking him to develop arguments against the case dismissal. The pick of Gleeson was a signal of its own, since just days before the appointment, Gleeson co-authored an op-ed arguing for Sullivan’s launching a “full, adversarial inquiry” into the dismissal motion and possibly denying it and sentencing Flynn.
On June 24, the appeals court granted Flynn’s writ of mandamus petition and ordered Sullivan to accept the dismissal.
Sullivan hasn’t complied, taking advantage of the fact the appeals court orders take three weeks to take effect. Instead, he asked for a rehearing. His lawyer has argued that the situation is not sufficiently extraordinary to require the mandamus because Sullivan has not rejected the dismissal yet and the order “threatens the orderly administration of justice.”
Powell now says it’s the other way around, and that Sullivan shouldn’t be allowed to prolong the case for several reasons.
First, she argued, Sullivan should be an impartial arbiter, an umpire, with no personal stake in the case. As such, he’s not a party to the case and thus not entitled to even request an appeals court hearing.
“Umpires don’t get to swing bats or run bases,” she said in the brief.
Also, both the constitution and judicial precedent stipulate that decisions to bring or drop charges belong solely to the executive branch.
“Judge Sullivan’s stubborn disagreement with the Government’s decision to dismiss the case does not confer the right to contest it himself or through his amicus,” Powell said. “His actions smack of vindictive animus against General Flynn and judicial overreach that have no place in America’s justice system.”
A decision to drop charges can be questioned by a judge only in extraordinary circumstances, such as when the government offers a mere boilerplate reasoning for doing so, she’s argued.
The Flynn case dismissal, however, relied on dozens of pages of newly produced evidence, which Sullivan has appeared to ignore, according to Powell.
“The district court’s delay here has extended this litigation and impaired General Flynn’s freedom for an additional 10 weeks so far,” she said. “General Flynn’s personal freedom is at stake. He cannot travel freely, obtain employment, or enjoy a normal life until this case is dismissed. His very liberty is wrongly impaired until the dismissal is granted.”
Furthermore, with both Flynn and the DOJ being on the same page, there’s no longer a “live controversy” for Sullivan to address.
“The umpire cannot force the teams to play extra innings after the game is over,” Powell said. “He, the players, and the spectators need to go home and turn off the floodlights.”
For Sullivan’s petition to go through, a majority of the appeals court judges would have to agree to it. Seven of the 12 judges were appointed by Democrat presidents. While judicial decisions don’t always break along party lines, the Flynn case has had broad political implications, particularly since the emergence of the January 2017 notes indicating that both President Barack Obama and then-Vice President Joe Biden were personally involved in the case.
Correction: A previous version of this article inaccurately characterized what the John Gleeson op-ed argued for. The op-ed argued for Sullivan’s launching a “full, adversarial inquiry” into the dismissal motion and possibly denying it and sentencing Flynn.