BY JAN WOLFE
U.S. appeals court judges on Tuesday signaled skepticism toward a bid by President Donald Trump’s former national security adviser Michael Flynn to compel a federal judge to immediately drop the criminal case against him as the Justice Department has demanded – even though Flynn pleaded guilty to lying to the FBI.
Ten judges from the U.S. Court of Appeals for the District of Columbia Circuit were hearing arguments in the politically charged case after a three-judge panel, in a 2-1 ruling on June 24, directed U.S. District Judge Emmet Sullivan to grant the Justice Department’s motion to clear Flynn.
As the hearing got underway, Sidney Powell, Flynn’s lawyer, accused Sullivan of “usurping” the job of a prosecutor and said the judge “impermissibly sallied forth to right the wrongs that he perceived.”
Democrats and other critics have accused Attorney General Bill Barr of protecting Trump’s friends and allies in this and other high-profile criminal cases, warping the rule of law. Trump on July 10 also commuted the prison sentence of his friend and adviser Roger Stone, who was convicted of lying under oath to lawmakers investigating Russian interference in the 2016 U.S. election.
Early questions from the judges dealt with procedure and whether it was premature for their court to step in now, before Sullivan has even ruled on the Justice Department’s request for dismissal.
Judge Thomas Griffith said Sullivan appeared to be simply “educating” himself by holding a court hearing before ruling on the Justice Department’s request.
“The judge is not simply a rubber stamp,” Griffith said, echoing words Sullivan has used in the case.
Judge Cornelia Pillard suggested there was nothing improper about Sullivan’s decision to appoint a retired judge to make arguments against the Justice Department’s request.
“It is the core of any judge’s job to assess cases using the best arguments that can be made on both sides,” Pillard said.
“And your position,” Pillard told Flynn’s lawyer, “is that ‘No, he can’t hear both sides on the law and he has to drop the case like a hot potato.'”
Flynn, a retired Army lieutenant general, was charged under former Special Counsel Robert Mueller’s investigation that detailed Moscow’s election meddling. Flynn pleaded guilty two times to lying to the FBI about his conversations with Russia’s then-ambassador, Sergey Kislyak, concerning U.S. sanctions imposed on Moscow under President Barack Obama before Trump took office in 2017.
Sullivan asked the full D.C. Circuit court to reconsider the three-judge panel’s ruling, saying the Justice Department’s move to clear Flynn was unprecedented and had to be carefully scrutinized.
After pleading guilty, Flynn changed course and switched lawyers to pursue a scorched-earth tactic that accused the FBI of setting him up.
Tuesday’s arguments were being heard by 10 of the D.C. Circuit’s 11 active judges. Judge Gregory Katsas, a Trump appointee who previously served in the White House Counsel’s office, recused himself.
The judges will either rule to allow Sullivan to hear arguments on the Justice Department’s request to dismiss the charges, or rule against the judge and order an end the case. The D.C. Circuit’s decision then potentially could be appealed to the U.S. Supreme Court.
Flynn joined Trump’s 2016 campaign and at the Republican National Convention that year led chants of “Lock her up,” referring to Democratic candidate Hillary Clinton. Trump fired Flynn after only 24 days as national security adviser when it emerged that Flynn had misled Vice President Mike Pence and the FBI about his Kislyak dealings.
