Appeals court appears reluctant to order dismissal of Flynn case

A divided federal appeals court on Friday seemed reluctant to order the judge presiding over former national security adviser Michael Flynn’s prosecution to dismiss the case ahead of scheduled arguments in the trial court next month.

During a Friday hearing before a three-judge panel of the D.C. Circuit Court of Appeals, two judges expressed reservations about preventing U.S. District Judge Emmet Sullivan from ruling on the Department of Justice’s (DOJ) motion to dismiss Flynn’s criminal case.

Sullivan drew attention last month when he took the unusual step of appointing a retired federal judge to argue against dropping the charges and to explore the possibility of holding Flynn in contempt for perjury, with a hearing scheduled for July 16.

Flynn responded by asking the D.C. Circuit to order Sullivan to drop the case and block the court-appointed counsel from pressing for Flynn’s continued prosecution.

But at least two members of the three-judge panel on Friday appeared wary of removing Sullivan’s authority to consider additional perspectives and issue his own ruling — which could include granting DOJ’s request to drop the charges.

“We have Judge Sullivan, who is an old hand, he’s an excellent trial judge,” said Judge Karen Henderson, a George H.W. Bush appointee. “And he may say, to himself at least, you know, I asked for advice, and I’m ignoring it. And I’m granting the motion to dismiss. Shouldn’t he be allowed to do that?”

Judge Robert Wilkins, an Obama appointee, also seemed reluctant to intervene in the pending trial court proceedings. The view of Judge Neomi Rao, a Trump appointee who posed probing questions to counsel on both sides, was more difficult to read.

The Friday hearing comes after the DOJ last month asked Sullivan to drop the charges against Flynn for lying to the FBI about his contacts with Russia in the weeks before President Trump took office. Flynn previously pleaded guilty to the crime.

DOJ’s motion to dismiss shifted attention to Sullivan, a Clinton appointee who has been on the bench since 1994 and is seen as having a fierce independent streak.

Sullivan selected John Gleeson, who spent 22 years as a judge and served as a federal prosecutor before entering private practice, to serve as an amicus curiae, or friend of the court, in opposition to the DOJ’s push for dismissal.

In an 82-page filing submitted to the trial court earlier this week, Gleeson accused the DOJ of “gross abuse of prosecutorial power” in its handling of the case against Trump’s former adviser. He also accused Flynn of committing perjury in withdrawing from an earlier guilty plea, and urged Sullivan not to let the Trump administration withdraw its case.

Sidney Powell, Flynn’s attorney, argued to the D.C. Circuit on Friday that Sullivan no longer has any authority over Flynn’s criminal case now that DOJ has announced its desire to drop the prosecution. 

“There’s no case or controversy any longer, the parties have decided. The government has quit,” she said. “And [Sullivan] also has no authority to go into the reasons behind the executives determination to dismiss the case.” 

The DOJ is backing Flynn’s request to the D.C. Circuit, and has pointed to recently revealed documents related to the initial investigation of Flynn that purport to show prosecutors mishandled his case.

Among the three-judge panel, Rao appeared the most sympathetic to the view that Sullivan’s handling of the case exceeded his judicial power under Article III of the Constitution. 

“Where both the government and the defendant agree with the motion to dismiss, I mean, isn’t the appointment of an advocate creating an Article III case or controversy where there isn’t one?” Rao asked attorney Beth Wilkinson, who represents Sullivan.

If a majority of the three-judge panel declines to intervene, then oral arguments over DOJ’s motion to dismiss are expected to take place next month in the U.S. District Court in D.C. with Sullivan presiding.