Sidney Powell, lawyer for former Trump national security adviser Michael Flynn, told a federal judge during a hearing that she will move to disqualify the judge from the case. She then got into an exchange with him that became heated as each interrupted the other.
The exchange happened during a Sept. 29 virtual hearing where District Judge Emmet Sullivan heard arguments on the Department of Justice’s (DOJ) move to dismiss the criminal case against the retired three-star U.S. Army general.
“I need to also move to disqualify the court and urge that it recuses itself immediately,” Powell said. “It’s absolutely unprecedented for proceedings against a defendant to be conducted by a person who actively litigated against him.”
She was referring to the fact that Sullivan earlier this year successfully appealed a decision of a higher court that compelled him to immediately accept the case dismissal. The judge made himself akin to a party in the case, creating an appearance of bias, which is grounds for recusal, according to Powell.
“I’m not sure whether you’ve ever filed a motion to recuse in this case before me. I don’t know. Did you? I may be mistaken. I don’t believe you have,” Sullivan said.
“I’m writing that motion right now, your honor,” Powell interjected.
“Put it in writing. I don’t want to cut you off. But if you want to file a motion to recuse, you probably should have filed it. But you didn’t. And I’ll certainly afford you an opportunity to prepare and file an appropriate motion to recuse,” Sullivan said.
“I’m not going to address that on oral representations of counsel. I’m not going to waste your time or everyone else’s time. You could have filed a motion in writing. You could have filed it in June. You could have filed it earlier. But even though you didn’t, I’ll certainly afford you an opportunity to do that. I’ll give you a week from the day to file your motion to recuse. Next point.”
Powell then proceeded to explain why she planned to file the motion only now.
“Counsel, what’s the next point,” Sullivan interjected. “What’s the next point? I don’t need to hear anything more about that. I’m going to give you an opportunity to file your motion to recuse. I’ll give you a week from the day.”
The exchange underscored the tension between Sullivan and Powell that has emerged as Sullivan has put off accepting or denying the dismissal.
Flynn pleaded guilty in 2017 to lying to FBI agents. In January, he asked the judge to allow him to withdraw the plea. The DOJ dropped the case in May after an internal review unearthed evidence suggesting the FBI agents were trying to catch Flynn in a lie.
Sullivan responded to the motion by appointing former federal Judge John Gleeson to argue against the dismissal and determine whether Flynn should be charged with contempt of court for walking back his plea.
A three-judge panel of the appeals court ordered Sullivan to accept the case dismissal in June, after which he appealed for a rehearing before the full court of 11 judges (en banc).
The court reversed the panel decision and sent the case back to Sullivan on Aug. 31.
On Sept. 1, Sullivan ordered Flynn, the DOJ, and Gleeson to come back to him by Sept. 21 with a proposed schedule for further proceedings. He also ordered the parties to submit a consolidated response to other third parties that have sounded off on the case.
The parties asked the judge to expedite the hearing, and he picked the latest hearing date the parties suggested.
During the hearing, Sullivan questioned Powell and the DOJ lawyers on whether Attorney General William Barr decided to drop the case based on Trump’s tweets criticizing the case against Flynn or Powell’s letter to Barr last year, where she spelled out some concerns she had about the case and asked for him to appoint new prosecutors.
Powell said she received no response to the letter and that she only talked to Trump about the case several weeks ago to give him an outline of the case; she asked him not to pardon Flynn.
The DOJ lawyers said Barr’s decision wasn’t based on Trump’s tweets and pointed to the new evidence. Among the new documents is a statement of a Flynn case agent expressing his belief that the prosecution was used as a means to “get Trump.”
They said no career prosecutor would bring the case under these circumstances. When Sullivan asked for an example of a case that was dismissed under analogous circumstances, they said they weren’t aware of one since normally such a case wouldn’t have been brought in the first place.
At the conclusion of the hearing, Sullivan said he will move on with the proceedings “with dispatch,” as the higher court had urged him last month.