The federal judge weighing the Justice Department’s motion to drop its charges against Michael Flynn asked an appeals court on Monday to deny the former national security adviser’s effort to get the case dismissed.
Lawyers for Judge Emmet G. Sullivan responded to Flynn’s appeal to the D.C. Circuit Court of Appeals, arguing that Sullivan will not serve as “a mere rubber stamp” for the Department of Justice’s (DOJ) unusual move
“The unique facts of this case warrant evaluation by the trial judge before any review by this Court,” Sullivan’s lawyers wrote. “It is unusual for a criminal defendant to claim innocence and move to withdraw his guilty plea after repeatedly swearing under oath that he committed the crime.”
“It is unprecedented for an Acting U.S. Attorney to contradict the solemn representations that career prosecutors made time and again, and undermine the district court’s legal and factual findings, in moving on his own to dismiss the charge years after two different federal judges accepted the defendant’s plea,” the brief continues.
The DOJ, however, stood behind Flynn on Monday, echoing his call for the circuit court to order Sullivan to drop the charges and arguing that the judge can not “assume the role of prosecutor and initiate criminal charges of its own.”
“The Constitution vests in the Executive Branch the power to decide when—and when not—to prosecute potential crimes,” the DOJ wrote in its filing. “Exercising that Article II power here, the Executive filed a motion to dismiss the indictment, and petitioner consented. Despite that exercise of prosecutorial discretion, and the lack of any remaining Article III controversy between the parties, the district court failed to grant the motion and bring the case to a close. It instead appointed an amicus curiae to argue against dismissal and to consider additional criminal charges.”
After the DOJ moved last month to drop its case against Flynn for lying to the FBI about his contacts with a Russian diplomat in late 2016, Sullivan appointed a former federal judge to serve as an amicus, or friend of the court, and present an argument against the motion and explore whether Flynn had committed perjury in reversing his 2017 guilty plea.
Flynn’s lawyers attacked the move, asking the D.C. Circuit to intervene and force Sullivan to accept the prosecutors’ motion to dismiss the case. They argued that Sullivan had overstepped his authority and trampled on the separation of powers that gives the executive branch sole discretion over criminal prosecutions.
“An innocent man has been the target of a vendetta by politically motivated officials at the highest level of the FBI,” Flynn’s lawyers wrote last month. “The egregious Government misconduct, and the three-year abuse of General Flynn and his family, cry out for ending this ordeal immediately and permanently. The district judge’s orders reveal his plan to continue the case indefinitely, rubbing salt in General Flynn’s open wound from the Government’s misconduct and threatening him with criminal contempt.”
The government’s move to dismiss the charges was highly unusual considering that Flynn had admitted to the charges in court as part of a plea agreement with prosecutors. Just before the Justice Department filed the motion last month, the lead prosecutor withdrew from the case.
The incident has raised concerns about whether the Trump administration is intervening in a criminal prosecution on behalf of the president’s ally and former adviser.
Sullivan’s lawyers said Monday that the judge has not made up his mind about how he will rule on the DOJ’s motion, but noted the unusual circumstances surrounding the government’s change of heart.
“For several years, the government represented to the district court, across multiple court filings and appearances, that Mr. Flynn was guilty of making materially false statements,” they wrote. “As recently as January of this year, the government maintained those representations.
“And Mr. Flynn repeatedly affirmed his guilt, under oath and penalty of perjury, despite being given multiple opportunities to disclaim it. It was not until this year that Mr. Flynn, and then the government, told the district court that its finding of guilt should be reversed and that the government’s prior solemn representations were legally and factually untrue,” the lawyers added.
—Updated at 5:49 p.m.
