Members of a federal appeals court signaled Tuesday that they are likely to let a lower court judge decide whether to dismiss criminal charges against former Trump national security adviser Michael Flynn.
After nearly four hours of oral argument conducted through conference call, a majority of the Court of Appeals for the District of Columbia seems inclined to rule that District Court Judge Emmet Sullivan should be allowed to decide if the Justice Department’s motion dismisses to give to the trial.
If Sullivan refuses to evict the prosecutors, Flynn could then continue his appeal, a majority of the judges suggested. The issue before the Court of Appeals was whether Flynn’s attorneys jumped the gun by seeking a rarely granted form of appeals court order, a type of order known as a writ of mandamus, instead of waiting for Sullivan to rule.
“Which self-respecting judge would act without asking why the government wants to drop the case?” asked Judge Nina Pillard of the higher appeal. “Should the judge not be able to consider, in the light of the strongest evidence on both sides, why the case should be dismissed?”
Judge Thomas Griffith said judges of justice have some discretion, even if the government wants to drop a case. “The judge needs to think about it. He’s not just a rubber stamp,” he said.
And several members of the court said judges should have authority to ask why the government decided to dismiss dismissals if, for example, evidence in some future turned out to be that a prosecutor took a bribe from the suspect.
But Flynn’s attorney, Sidney Powell, and acting U.S. Attorney General Jeffrey Wall said because the decision to bring or reduce prosecutors is exclusive to the government, judges have very little authority to back the decision. to see persecution.
“The government can not be forced to bring a prosecution, despite its motive for not doing so, and it can not be forced to maintain it,” Wall said. If there is evidence that a prosecutor has a bribe to leave prosecutors, the judge could refer that evidence to the Justice Department to investigate the prosecutor, he said.
But Sullivan “went through the guardrails, and he needs to be reinstated,” Powell said, as he appointed a retired judge to argue why the Flynn case should not be dismissed.
Flynn twice pleaded guilty to accusations that he lied to FBI agents in January 2017 about his talks with Russia’s ambassador to the US, but the justice department told Sullivan in May that it wanted to leave the prosecution and fly Flynn off the hook. soe. Attorney General William Barr ruled that Flynn’s false statements to the FBI were not material to any open investigation and therefore did not violate the law.
Wall said during Tuesday’s hearing that Barr’s decision was also based on information endorsing the prosecution which has not yet been made public.
Instead of simply granting the government’s request, Sullivan appointed a former judge to argue that the prosecutors should not be dismissed so that he could hear both sides of the issue. He set up a hearing on whether the case would be dropped in the public interest.
But that hearing was never held. Flynn asked a panel of the appellate court for an order directing Sullivan to dismiss the prosecutors, and by a 2-1 vote, it said the judge had no other option but to do so. Sullivan then asked the full appellate court to repeat the case.
Beth Wilkinson, a Washington attorney who represented Sullivan at Tuesday’s hearing, said the judge had not yet done anything to justify an appeal.
“The judge has not asked any questions from the government or from anyone else. No fact-finding has been requested,” she said. After reading the short, he can not ask much about it. “The speculation and fears of the parties about what the district court can do are not a good basis for mandamus.”
If, as is likely, the appellate court says it is up to the judge to dismiss the case, Flynn’s legal saga is sure to carry on for several months. If Sullivan decides not to drop the case, he will proceed to sentencing. Flynn’s attorneys would no doubt then return to the higher court for another round on the question of whether the case should be dismissed, as the Justice Department has urged.
There is no deadline for the higher appeal to issue its decision. It can take several months.
