Most of the 10 DC Circuit judges who heard arguments seem to agree that Flynn’s prosecution on a criminal charge of lying to the FBI was likely dropped as a result of the Justice Department’s abrupt decision. the justice to drop the case earlier this year. But the and banc court sounded touching to part with a smaller appeals court panel that in June, 2-1, with Flynn sitting in its request to force Sullivan to close the case immediately.
A clear sign that Flynn was in trouble Tuesday came when Judge Thomas Griffith – the only Republican nominee on the en banc court who had not already ruled in Flynn’s favor – suggested he believed a court ruling that the Justice Department decided the case gives judges a role in ensuring that a case is not dropped for an illegitimate, political reason.
“Favoritism for a politically powerful suspect. Isn’t that one of the goals? “That seems to be exactly the role of what’s going on here,” Griffith said.
The remark on the appointment of President George W. Bush came after a controversial exchange with Flynn’s chief attorney, Sidney Powell, over Sullivan’s role in deciding whether or not the government’s motion was substantive.
‘Is it ministerial or not? Yes or no? Asked Griffith.
“It’s pretty ministerial,” Powell replied haltingly.
“Well, Mrs. Powell, that’s not helpful,” Griffith replied. ‘It’s not a ministerial, you know that. … The judge needs to think about it. He’s not just a rubber stamp. ”
Flynn and the Justice Department did not appear to be doing any better with any of the other judges, except for the two Republican-appointed appeals judges who ruled for Flynn earlier this year.
Judge Nina Pillard challenged aggressive acting attorney general Jeffrey Wall, noting that Flynn pleaded guilty in 2017 and confirmed his plea in 2018, before Attorney General William Barr ordered a reversal in May of this year and moved to the case to leave.
“What self-respecting Article II judge would simply jump in and place an order without doing what he could to understand both sides?” said Pillard, a nominee for President Barack Obama. ‘It’s just really striking and remarkable – what is the government worried about? … He only wanted one argument. ”
Wall insists that any hearing aimed at government reasons would interfere with the executive branch’s constitutional power to decide which prosecutions to pursue and which to drop.
“On these facts, I do not think there is an appropriate hearing that could have been,” the acting attorney general said. Sullivan “wants a hearing to examine our motives,” Wall added. “No hearing is allowed.”
On several occasions, Wall seems to acknowledge that the arguments of the government and Flynn did not win traction with the judges. At several points, the Justice Department’s attorney moved to a fallback position, urging the judges to set clear boundaries on what Sullivan can do at the hearing that he intends to keep to the motion. government.
Although he sometimes seems to apologize for a loss, Wall made several arguments that provided insight into the Justice Department’s view of the Flynn case. He pointed out that Barr may have been keeping secret information about the reasons for dismissing the case, that he was not allowed to tell the court, although it was not entirely clear whether Wall confirmed that happened in this instance.
“The attorney general sees this in the context of non-public information from other investigations,” Wall said. ‘It is possible that the attorney general had information for him that he could not share with the court. We present to the court the reasons we could, but it may not be the whole picture available to the executive department. “
Wall also stated that the Justice Department’s position was that even in hypothetical cases of irresponsible criminal conduct by a prosecutor, a judge is not allowed to examine the sand for a decision to prosecute.
Sullivan’s attorney, Beth Wilkinson, faced a more friendly question from the judges, who pressed on what Sullivan saw as the appropriate role of his court in assessing the attempt to dismiss the case.
Wilkinson repeatedly stressed that Sullivan simply wanted to hold a hearing and accept letters from the parties. She described as “speculation and fear” the repeated alarms raised by Flynn and the Justice Department about what questions Sullivan might ask.
“They said they think it’s going to be a circus,” she added. “There is absolutely no basis for that. There’s nothing the court has done … to suggest that it will do something then follow the law. “
Wilkinson also opposes Wall’s suggestion that the Court of Appeal draw up clear guidelines on what Sullivan can and cannot do because he considers the government’s motion.
“I see no need for instructions from this court,” she said.
The timing of the next steps in the case could dramatically change the political impact of Flynn’s legal predicament.
A decision soon in Flynn’s favor could free the former chief of Defense Intelligence’s agency from becoming a boisterous surrogate for late campaign for Trump, who accused Flynn of prosecuting Corrupt and promised to welcome him back into his job.
However, a swift statement against the former aide would free Sullivan to continue with his plan to hold an attention-grabbing hearing in which a former federal judge selected Sullivan, John Gleeson, would argue against the motion of justice to drop the case while Flynn’s attorneys try to air their claims that he was influenced by politically motivated FBI officials and for years unknowingly denied evidence by deputies to Special Attorney Robert Mueller.
Such a hearing would almost certainly become a proxy fight in the partisan fight over Mueller’s investigation was a zealous investigation into Russian interference in the elections and malfeasance by Trump allies as if it were a ‘witch hunt’ based on flash evidence and let by biased investigators.
Powell soon referred to the political polarization surrounding the case, and in her opening statement referred to Sullivan’s handling of the case as “the now glamorous appearance of bias to millions of citizens.”
If Flynn loses at the DC Circuit, he could offer a final slate to the Supreme Court to seek emergency relief to try to adjourn the hearing, which was scheduled for July 16 before being adjourned due to DC’s first ruling. Circuit.
Some of Tuesday’s arguments focused on whether Sullivan should start Flynn’s case, either because of bias or because the judge opted last month for a banc rehearsal of the appeal’s initial decision. court to grant Flynn’s petition to force an end to his case.
“Judge Sullivan dismisses all appearances of the impartial, impartial judge,” Powell pleaded.
In the initial phase of the appeal, the government did not respond to Flynn’s call to dismiss Sullivan – which could continue to be considered a charge of contempt or perjury against Flynn, as well as the issue of whether the government did not follow court rulings to prove Flynn. to give which is favorable to his cause.
On Tuesday, however, Wall said the government now saw some merit in re-allocating the case. He said Sullivan’s decision to ask the full appellate court to take up the case “suggests … a level of investment in the procedure that is problematic.”
“I think we have come to the conclusion that it is now at least a question of the appearance of impartiality,” Wall said.
Wall later added that he felt “rope-a-doped” by Sullivan’s arguments, which the Attorney General’s lawyer described as aggressive in the run-up to the and banc hearing, only for Wiklinson to Tuesday emphasize how limited the judge’s investigation may be. He described the shifting goals as further evidence that Sullivan’s scheduled hearing would serve no purpose but to delay the inevitable dismissal of the case.
Judge Neomi Rao, a Trump appointee who wrote the panel decision last month in Flynn’s favor, sounded offended – or at least surprised – by Sullivan’s request for an en banc rehearsal.
“What exactly is the district judge doing?” she asked.
Although Trump has repeatedly attacked Flynn’s persecution as corrupt, he has so far opted out of madness and has preferred to leave the case for years by the courts while sniffing from afar.
The hearing of en banc is the latest anomaly in Flynn’s Byzantine legal saga, which began in August 2016 – when the FBI opened an investigation into its links to Russia – following its fatal January 2017 interview with the FBI. after his guilty plea and December 2017 collaboration with federal investigators.
Sullivan was ready to sentence Flynn in December 2018 and indicated that a term of imprisonment was likely, despite prosecutors’ suggestion that a term of trial would be acceptable. The judge cited Flynn’s admission, as part of his plea agreement, that he worked as a paid agent of the Turkish government during the 2016 campaign without disclosing it. But instead of dropping a sentence, Sullivan gave Flynn more time to work with prosecutors prosecuting his former business partner.
Shortly after the shortened conviction for dismissal, Flynn fired his legal team and hired Powell, a Fox News fixture who had attacked the Mueller investigation several times. Powell soon claimed that Flynn was the victim of massive abuse by the FBI and prosecutors, claiming that they held evidence back and accusing Flynn essentially in a false statement, and later pressured him into a guilty plea.
Earlier this year, Flynn moved to take back his guilty plea and was soon helped by the Justice Department’s decision to drop the case. But Sullivan, citing the court’s traditional discretion in these cases, opted for immediate dismissal and appointed instead an outside adviser, Gleeson, to help him discuss whether to dismiss or have alternative options in the midst of ‘ the questions of political interference in the matter.
Flynn’s police quickly filed a petition in court to force Sullivan to drop the case, and a split three-judge panel ruled in their favor in June. But Sullivan asked the full appeals court to reconsider the case, leading to Tuesday’s hearing.
Ten of the court’s 11 active judges took part in Tuesday’s arguments, which were held by telephone and streamed live online under the court’s current protocols. One judge, Trump appointed Greg Katsas, denied himself. Katsas, who served as the White House’s deputy attorney at the time Mueller was appointed in 2017, has dismissed him from all cases involving the attorney general’s investigation.
One lawyer who listened to Tuesday’s hearing, Andrew Weissmann, a former Mueller deputy, suggested on Twitter that Sullivan should give the government the motion to dismiss the case, but do so “without prejudice.” In the absence of a pardon from Trump that would leave Flynn open for prosecution, something that Weissmann indicated could follow a change in administration.
