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Government lawyer suggests Attorney General Barr had secret reasons for dropping Michael Flynn criminal case

Former national security adviser Michael Flynn exits a vehicle as he arrives for his sentencing hearing at U.S. District Court in Washington, U.S., December 18, 2018.

Jonathan Ernst | Reuters

Attorney General William Barr may have had secret information that led the Justice Department to seek to drop its criminal case against Michael Flynn, a government lawyer said Tuesday.

Jeffrey Wall, the acting U.S. solicitor general, revealed the existence of that possible non-public information during a full appeals court hearing over whether Flynn’s case in federal court should be dismissed, as the Department of Justice has requested.

The DOJ had provided multiple reasons for U.S. District Court Judge Emmet Sullivan to throw out its own case against Flynn, who had previously pleaded guilty of lying to the FBI about his contacts with the Russian ambassador to the U.S. in the weeks before Trump’s inauguration.

But Wall, who was representing the DOJ, told a full panel of judges on the appeals court in Washington, D.C., that Barr’s judgment on Flynn’s case came “in the context of non-public information from other investigations.”

“I just wanted to make clear that it may be possible that the attorney general had before him information that he was not able to share with the court,” Wall said, “and so what we put in front of the court were the reasons that we could, but it may not be the whole picture available to the executive branch.”

Rather than promptly grant the DOJ’s request to drop the charge against Flynn, Sullivan had appointed a former judge to make arguments for the position that the case should not be tossed. Sullivan also allowed other outside parties to weigh in on the question.

In response, Flynn’s lawyers asked the appeals court to force Sullivan to grant the request to dismiss the case. A three-judge panel had ruled in favor of Flynn, but the full court later agreed to re-hear the case in response to a request from Sullivan’s lawyers.

In the hearing Tuesday, Flynn’s lawyer, Sidney Powell, said that the trial judge in the case, Emmet Sullivan, has “discarded any semblance of the unbiased impartial adjudicator” he is expected to be.

Powell also said that Sullivan now has the “now-glaring appearance of bias” for millions of Americans.

But Powell faced a highly skeptical-sounding group of appeals judges that aggressively questioned her argument that Sullivan had little power to do anything other than grant the Justice Department’s request to drop its prosecution of Flynn.

“The judge has to do some thinking about it, right? The judge is not simply a rubber stamp,” one of the judges asked Powell.

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