Former National Security Adviser Michael Flynn’s attorney pleaded guilty before the DC Circuit Court of Appeals on Tuesday that District Court Judge Emmet Sullivan’s exaggerated his authority by pushing for further arguments instead of prosecuting motion to dismiss Flynn’s case.
A three-judge panel previously sat with Flynn and issued a mandamus instructing Sullivan to dismiss the case, but Sullivan appealed to assess the full roster of the court case.
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“Gen. Flynn is a suspect without a prosecutor, ”said Flynn’s attorney Sidney Powell during oral arguments, arguing that it is the role of the Justice Department to determine whether to prosecute or not.
Powell was shocked by the judges over the question of whether mandamus is suitable at this point in the case, given that Sullivan has yet to decide on the DOJ’s motion to dismiss. Mandamus, noted Chief Justice Sri Srinivasan, is for when there are no adequate alternative ways of dealing with an issue, noting that a ruling by Sullivan could provide such means if it is in Flynn’s favor.
Powell mentioned the case of US v. Fokker preceded DC Circuit Court, where mandamus was used in a similar situation, but Judge Judith Rogers pointed out that in Fokker the judge had already ruled.
Powell argued that the mandamus’ drastic measure was necessary because the process Sullivan had created was “far beyond the pole.” Sullivan had appointed retired judge John Gleeson as amicus curiae – friend of the court – to file a brief argument against dismissing Flynn’s case and called for a hearing on the cases involved.
Powell referred to Gleeson’s “blistering on-ed in the Washington Post” as evidence that his “bias required his disqualification.”
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Despite Powell’s arguments, Judge Merrick Garland asked the question of whether waiting for a verdict and then appealing would be the right process in this situation. Garland pointed out that even in a case where the Supreme Court decides on a matter in a case and a lower court opposes it, an appeal, not a petition for mandamus, is the correct answer,
Powell said she generally agrees with Garland, but not in a situation where prosecutors are essentially closing the case.
“The court can not proceed with a prosecution,” Powell said, arguing that this is what Sullivan is doing here.
Judge Cornelia Pillard – an Obama nominee – took a similar approach to Garland, saying “we do not know” what Sullivan would have done because he could not hold a hearing on the motion to dismiss.
“We have no case of merit” at this stage, Pillard added, suggesting she would vote to return the case to Judge Sullivan to decide on the motion to dismiss. What he then decides could then be subject to another appeal on the merits, restarting the process.
Judge Thomas Griffith focused on the part of the federal rule that governs motions to dismiss, which states that such motions can be granted “with leave of court.” Griffith asked if this was merely a “ministerial” provision.
“It’s almost ministerial,” Powell said, but Griffith said it was whether it was or not, and in fact not. Griffith said that means Sullivan has the right to consider his decision and to commit himself before doing so.
“The judge is not a rubber stamp,” Griffith said, stating that the real question is what can he do to give himself up.
Powell again pointed to the lack of a prosecutor ready to proceed with the case, claiming that Sullivan had made a lawsuit in advance that ‘completely’ trampled ‘the executive branch’s authority over federal prosecution.
Acting Attorney General Jeff Wall supported Flynn, telling the court that if prosecutors move to dismiss a case and the defendant agrees, “the criminal case should be at an end.”
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Federal prosecutors moved to dismiss Flynn’s case – in which he had previously pleaded guilty to giving false statements to the FBI – after FBI records cast doubt on the circumstances surrounding Flynn’s interview with investigators. The DOJ has been criticized by Democrats for giving Flynn unusual and ill-treated treatment because of his connection to President Trump.
Ten of the 11 active judges on the court roster were present for the arguments. Judge Gregory Katsas, who was appointed by Trump and once served in the White House attorney’s office, took him back.
Fox News’ Bill Mears has contributed to this report.
