Flynn argues federal judge doesn’t have standing to fight dismissal of charges

Michael Flynn’s lawyers argued on Monday that a federal judge overseeing the case against the former national security adviser doesn’t have legal standing to fight an appeals court’s order to dismiss the criminal charges.

In a court filing submitted with the D.C. Circuit Court of Appeals, Flynn’s legal team pushed back against District Court Judge Emmet Sullivan’s request for the court to rehear the case after a three-judge panel had ordered him to grant the Department of Justice’s motion to drop its charges.

“The district court has hijacked and extended a criminal prosecution for almost three months for its own purposes,” Flynn’s lawyers wrote.

Sullivan is petitioning the circuit court to reconsider the case after the panel ruled 2-1 that the judge must throw out the criminal charges. After the Justice Department had made its surprising move to withdraw, Sullivan appointed an outside counsel to present a counterargument and scheduled further briefings in the matter to consider his options.

Flynn had pleaded guilty in 2017 to lying to the FBI about his conversations with a Russian diplomat during the Trump administration’s transition period in December 2016. Earlier this year, he moved to retract his plea and proclaim his innocence, saying that newly revealed internal FBI communications showed investigators’ misconduct.

Before Sullivan could rule on the motion, Flynn asked the D.C. Circuit to force him to drop the charges. After winning the favorable panel decision, Flynn’s lawyers are now arguing that the judge is powerless to fight the ruling.

“The umpire is not an active litigant,” they wrote, using a baseball analogy. “To allow Judge Sullivan to delay and generate litigation against a criminal defendant is unconstitutional. This action itself diminishes the status of the federal judiciary as an independent bulwark for the rule of law.”

It’s unclear whether the D.C. Circuit will agree to rehear the case. If they do, a broader panel of judges will consider whether Sullivan was within his rights to order further arguments over the Justice Department’s unusual motion.