Michael Flynn, former U.S. national security adviser, exits federal court in Washington, D.C., U.S., on Monday, June 24, 2019.
Andrew Harrer | Bloomberg | Getty Images
A lawyer for former national security advisor Michael Flynn on Friday called his prosecution a “travesty of justice,” but a federal appeals court appeared skeptical of her request that it force a lower court judge to dismiss the case.
Sidney Powell, Flynn’ lawyer, told the appeals court that the case’s judge does not have the power to avoid granting the dismissal, as the Justice Department has asked him to do despite Flynn pleading guilty to lying to FBI agents about his conversations with a Russian diplomat before President Donald Trump was inaugurated.
Powell also said U.S. District Court Judge Emmet Sullivan lacks authority to ask an outside lawyer to make legal arguments against that request, as the judge has done.
“It cannot go on any longer,” Powell told a three-judge panel at the U.S. Circuit Court of Appeals in Washington, D.C.
“There is nothing further for the court to do,” she added, during a hearing that lasted nearly two hours, and was conducted over remote audio links due the coronavirus pandemic.
“It’s a travesty of justice that this man has been dragged through” a three-year court ordeal on a case that was “absolutely concocted,” Powell said of Flynn, a retired Army lieutenant general who briefly served as Trump’s first national security advisor.
But members of the appellate panel appeared skeptical that they should intervene in the case now, as Powell has asked, before Sullivan has actually ruled on the dismissal request.
The appellate judge also questioned the idea that a federal judge does not have the power to either conduct an independent inquiry of prosecutors’ decision to drop a case, or to deny such a request.
One judge on the appeals panel asked several times why the appellate court could not just wait for Sullivan to rule on the dismissal request, and then review the case, if needed.
Sullivan has already proposed a hearing schedule for Flynn and the DOJ to argue their points.
Powell said that if the appeals court allowed Sullivan to conduct hearings in federal district court in Washington on the dismissal motion, “We would simply be delaying the inevitable.”
She cited the already high legal costs for Flynn in fighting the case.
The Justice Department, in a bombshell and highly unusual motion, last month asked Sullivan to toss out the case, arguing that a review of the investigation found that Flynn should not have been questioned by the FBI or charged with lying to federal agents. The department also said that potentially exculpatory evidence had been withheld from Flynn’s lawyers.
Sullivan, who had been on track to sentencing Flynn, so far has not granted the Justice Department’s request.
Instead, he appointed a former federal judge, the attorney John Gleeson, to make legal arguments for why the dismissal should not be granted.
Gleeson also was tasked with addressing the question of whether to hold Flynn in criminal contempt of court for having twice admitted under oath to criminal conduct that he now claims he did not commit.
Gleeson presented his findings to Sullivan earlier this week with a court filing that blasted the Justice Department for its dismissal motion, saying it was not legally sound.
He recommended that Sullivan deny the motion, and said that the judge should take what he believed to be Flynn’s perjury into account when sentencing him for lying to the FBI.
Gleeson wrote that the Justice Department committed “a gross abuse of prosecutorial power” and “has engaged in highly irregular conduct to benefit a political ally of the President.”
Trump has been critical of the case against Flynn.
Powell in the meantime is trying to short-circuit the ongoing proceedings in Sullivan’s court by asking the appellate court to force the dismissal and to bar Sullivan from inviting outside opinions, including Gleeson’s and other third parties, in his decision about whether to toss the case.
“The Department of Justice is the only entity . .. that has the authority to prosecute this case,” Powell argued Friday to the appeals panel.
“The government has quit and it’s time to leave the field.”
Beth Wilkinson, a lawyer arguing for Sullivan at the appeals court, said there is no reason to believe that he should not have the power to review the Justice Department’s dismissal request in a meaningful way, instead of merely acting as a rubber stamp for that request.
“Here, all the judge is doing is receiving a briefing [from Gleeson] and having a hearing,” Wilkinson said.
“That happens every day in district courts when a party files a motion and the judge asks questions,” she said.
“That’s all that’s happening here. There’s nothing more, nothing less.”
Flynn was fired weeks after becoming national security advisor in early 2017 for misleading Vice President Mike Pence about what he and Russia’s then-ambassador to the United States, Sergey Kislyak, talked about before the inauguration.
Flynn told Pence he had not discussed U.S. sanctions against Russia, which led Pence to defend him in television interviews.
In fact, Flynn had discussed those sanctions, as he admitted in plea hearings before Sullivan, and has been verified in recently released transcripts of the calls.