WASHINGTON – Michael Flynn's efforts to force an end to the criminal case against him faced a skeptical appeals court Tuesday, as judges questioned whether the presiding judge overstepped his authority when he refused to immediately dismiss the case.
At issue is whether U.S. District Judge Emmet Sullivan abused his discretion when he appointed a third party, known as an amicus, to challenge the Justice Department's bid to drop its prosecution of President Donald Trump's former national security adviser.
Many of the appeals court judges, several of whom were appointed by Democratic presidents, seemed sympathetic to Sullivan's claims that he's entitled to hear a challenge to the Justice Department's motion to dismiss before ruling on it.
D.C. Circuit Court Judge Thomas Griffith, one of the only three judges on the panel who were appointed by Republican presidents, rejected the notion that a judge's role is merely ministerial.
"It's not ministerial. You know it's not. The judge is not simply a rubber stamp," Griffith told Flynn's attorney, Sidney Powell. "Aren't you just arguing about what the judge must do to educate himself or herself (to be able to make a ruling)?"
Powell argued that because the Justice Department had decided it no longer wanted to prosecute Flynn, Sullivan's only role is to promptly grant dismissal, but he has, instead, appointed an amicus to "usurp" the role of prosecutors. Sullivan's actions have created an "unconstitutional" process that lacks any semblance of impartiality, and he has "so invested himself" for the purpose of prosecuting Flynn, Powell argued.
But D.C. Circuit Court Judge Cornelia Pillard seemed skeptical that Sullivan can only grant dismissal. "Your position is, 'No he can't hear both sides of the law. He has to drop the case like a hot potato?'"
The hearing, which lasted nearly four hours, is the latest in Flynn's tangled criminal and political saga. The nearly 4-year-old case has now led to an unusual legal battle in the federal appeals court in Washington, D.C., where both Flynn and the Justice Department sought to dismiss the case, while Sullivan – himself represented by an attorney – argued he's entitled to scrutinize the government's motives.
Flynn pleaded guilty in 2017 to lying to the FBI about his communications with a former Russian ambassador, but later reversed course, claiming investigators entrapped him into making false statements. The Justice Department, too, reversed course, and sought to dismiss the case, arguing the interview during which Flynn made false statements was "unjustified."
Instead of dismissing the case, Sullivan appointed a retired federal judge to challenge the Justice Department's motion to dismiss and to determine whether Flynn had committed perjury for claiming he is innocent of a crime to which he had previously pleaded guilty.
In a 2-1 decision in June, an appeals court panel ruled in favor of Flynn and the Justice Department and ordered Sullivan to dismiss the case. The panel ruled that Sullivan's actions intruded on the Justice Department's prosecutorial powers.
The full appeals court, in a rare move, granted Sullivan's request to rehear the case.
During the hearing, acting Solicitor General Jeff Wall argued that Sullivan's decision to request a rehearing has created an appearance that he can't be impartial. "It raises a question in whether the district court is invested in what should be its official authority," Wall said.
Wall also said Sullivan cannot hold a hearing in which he probes the Justice Department's motives in dropping the prosecution, adding that doing so entrenches on executive power. The judges repeatedly pressed Wall on why a judge can't probe into the government's actions, even if, for example, they suspect wrongdoing.
"What if the court is concerned that favoritism is being played to a politically powerful defendant? Is that a proper concern?" Griffith asked.
"The district court may believe that the government had a bad motive ... but everybody agrees that the United States can't be made to bring a prosecution even if it should," Wall responded, adding that the same is true with dismissing cases.
Echoing Griffith, D.C. Circuit Court Judge Patricia Millet asked what judges can do if, hypothetically, they believe the government lied to them. "The court has to grant dismissal?"
Wall said that judges can't inquire further but that they can sanction the prosecutors.
Pillard acknowledged that the Justice Department has the authority to drop or pursue a prosecution, but she bristled at the notion that Sullivan can't question the agency's decision to dismiss the case of a defendant it once aggressively prosecuted.
"What self-respecting Article III district judge" would simply dismiss a case "without doing what he could do to understand both sides?" Pillard asked, referring to the establishment of the judicial branch. "What is the government worried about?"
Many of the judges also seemed unconvinced that holding a hearing on the government's motion to dismiss intrudes on prosecutorial powers. D.C. Circuit Court Judge Merrick Garland raised the possibility that Sullivan may ultimately dismiss the case after the hearing.
Beth Wilkinson, Sullivan's attorney, agreed, saying the case could have already been over had Sullivan been allowed to hold a hearing on the motion to dismiss.
Sullivan is simply doing what judges do, Wilkinson argued, and that is seeking to hear both sides before ruling on a motion. She added that both Flynn's attorneys and the Justice Department have merely speculated on what Sullivan might do.
D.C. Circuit Court Judge Neomi Rao, who authored the previous opinion that ordered Sullivan to grant dismissal, questioned why the judge is prolonging the proceedings.
"What we have here is an unopposed motion to dismiss. What interest does the district judge have in continuing to scrutinize. ... What precisely is the judge's interest in this?" asked Rao, who was appointed by Trump.
The case, Rao said in the June opinion, is about whether a judge may prolong a prosecution by appointing an amicus and probing the government's motives: "On that, both the Constitution and cases are clear: He may not."
This article originally appeared on USA TODAY: Michael Flynn: Appeals court hears case of Trump ally