Michael Flynn Files Emergency Petition to End His Court Case (2)

Former national security adviser Michael Flynn asked an appeals court to let the Justice Department drop a criminal case against him for lying to the FBI rather than wait for a lower-court judge to decide.

In an emergency petition, Flynn asked the U.S. Court of Appeals in Washington to order the dismissal of the case and to reassign the matter to a different judge for any additional issues that may arise.

The unusual move escalates a legal battle full of surprises since the retired Army lieutenant general was charged in 2017. After initially pleading guilty and agreeing to cooperate with the government, he sought to change his plea as prosecutors said he wasn’t being truthful with them. President Donald Trump has denounced the case against Flynn as a political assault, and Attorney General William Barr’s Justice Department this month requested it be dropped.

The lower-court judge, U.S. District Judge Emmet Sullivan, has refused to grant that request outright, after Flynn pleaded guilty under oath twice. Sullivan said last week he would accept briefs on the government’s motion to dismiss from outside parties. He asked a former federal judge who is now in private practice to offer a legal argument against the motion.

Michael Flynn and lawyer Sidney Powell leave federal court in Washington on June 24, 2019.

Photographer: Andrew Harrer/Bloomberg

Flynn’s lawyer Sidney Powell said in Tuesday’s filing that Sullivan had exceeded his authority by failing to immediately dismiss the case and accused the judge of “deep-seated antagonism” toward her client. Sullivan even falsely suggested at a plea hearing in 2018 that Flynn may have committed treason, Powell said.

“The district court has no authority to adopt the role of prosecutor or change the issues in the case,” Powell said in the filing.

The president’s repeated criticism of the case -- on the heels of the Justice Department’s intervention in the sentencing of his longtime supporter Roger Stone, whose prosecution he also blasted -- has led to claims that Barr is acting to please Trump. Barr has said the case is full of holes.

Read More: Prosecutors Quit Amid Uproar Over Trump Ally Stone’s Prison Time

Harvard Law Professor Andrew Crespo said on Twitter he will file a brief on behalf of more than 960 former federal prosecutors urging the judge to deny the government’s motion because it appears to be based on “partisan political reasons.”

“A democracy governed by the rule of law requires a Justice Department that acts evenhandedly when exercising its vast powers,” the group said in a draft of the brief. “There is ample evidence that under its current political leadership the department has been weaponized to do the opposite: to punish the president’s opponents and reward his friends.”

Sullivan has also asked the former judge who’ll be arguing against the dismissal, John Gleeson, to weigh in on whether Flynn should be held in criminal contempt for perjury for proclaiming innocence after admitting he lied to federal agents in the early days of the Russia investigation. Both Sullivan and Gleeson are Bill Clinton appointees.

Read More: Flynn’s Path to Freedom Runs Through Judge Who May Say No

On Tuesday, the judge issued an order directing Gleeson to file his initial brief in the case by June 10. The Justice Department and Flynn will have until June 17 to file their responses, according to the order, with oral arguments not coming until July 16 -- a schedule that could push the case’s resolution past the presidential election unless the appeals court acts now.

The U.S. said this month it had reversed course on the Flynn prosecution after an internal review found that Flynn’s false statements to agents of the Federal Bureau of Investigation weren’t “material” to the Russia probe. The government also said the agents appeared to have set up their interview with Flynn to catch him in a lie rather than for a legitimate investigative purpose, and that they failed to tell Flynn it would be a crime to lie to them.

In Tuesday’s filing, Powell said Flynn was being truthful when he entered his plea because he “had to accept on faith that the questions were ‘material’ to a legitimate criminal investigation, even though that was not made clear to him at the time.”

“In truth, they were not,” Powell said.

(Updates with details and context throughout)

To contact the reporter on this story:
Erik Larson in New York at elarson4@bloomberg.net

To contact the editors responsible for this story:
David Glovin at dglovin@bloomberg.net

Peter Jeffrey

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