Court appears reluctant to order dismissal of Flynn case

A federal appeals court appears skeptical of arguments that it should order the dismissal of the criminal case against former Trump administration national security adviser Michael Flynn despite a Justice Department request to abandon the prosecution.

Two of the three judges on the panel signaled during arguments Friday that they were inclined to remain out of the fray and to instead permit US District Judge Emmet Sullivan to evaluate on his own the department's unusual dismissal request. The pointed questioning suggested that the tussle over Flynn's fate is likely to continue until at least next month, when Sullivan has scheduled arguments in the case.

“There's nothing wrong with him holding a hearing as far as I know. I don't know of any authority that says he can't hold a hearing before he takes action,” said Judge Karen LeCraft Henderson, a nominee of former President George H.W. Bush.

With the arguments, the court waded into a power struggle between two branches of government as it weighed what role, if any, the judiciary should play when the Justice Department wants to dismiss one of its own cases. It's not only an important legal question but a political one too, given President Donald Trump's own personal interest in the case and the potential to undo one of the signature prosecutions from special counsel Robert Mueller's Russia investigation.

The department last month moved to dismiss its case against Flynn, who pleaded guilty as part of Mueller's investigation to lying to the FBI about his contacts with the Russian ambassador during the presidential transition period. Attorney General William Barr said he had concluded Flynn's interactions were entirely appropriate and that there was no basis to interview him about them.

The Justice Department now contends that any statements Flynn made to the FBI were not material to the broader counterintelligence investigation into the Trump campaign and Russia, prompting dismay from former law enforcement officials involved in the investigation who say law enforcement was justified in being leery of Flynn's actions.

Rather than immediately dismiss the case, Sullivan appointed a retired federal judge to argue against the Justice Department's position and to consider whether Flynn — who previously admitted guilt but now asserts his innocence — should face perjury charges. That ex-judge, John Gleeson, said in a filing this week that the move to dismiss the case amounted to an abuse of power.

The dismissal motion is one in a series of steps Barr has taken to scrutinize the Russia investigation and decisions made by both his subordinates and predecessors at the Justice Department. He appointed prosecutors to investigate the handling of the Flynn case and the origins of the Russia probe, and overruled a sentencing recommendation for Trump associate Roger Stone that he thought was unduly harsh, The focus Friday was not on the merits of the Justice Department's position but rather on whether Flynn's attorneys could bypass Sullivan and go straight to the appeals court to get him to dismiss the case. Flynn's lawyer, Sidney Powell, told the court there was no role for the judge to play now that prosecutors have abandoned their pursuit of Flynn.

“It cannot go on any longer,” said Powell, who called the prosecution of Flynn a “travesty of justice.” Powell said "the judge has no authority to do anything further in this case.” She later added: “The government has quit, and it's time to leave the field."

Deputy Solicitor General Jeffrey Wall, arguing on behalf of the Justice Department, said the court should not undertake an “elaborate process” to second-guess the department's reasoning, especially in an environment that he said was highly politicized. He balked at the idea that the government would have to publicly respond to arguments from Gleeson that he said impugned the motives of Barr and the Justice Department.

“There's no reason not to take that final step,” Wall said in asking the court to order Sullivan to dismiss the case. “This has already become, and I think is only becoming more of, a public spectacle.” The court appeared skeptical of arguments from lawyers for both Flynn and the government.

Judge Robert Wilkins, an appointee of former President Barack Obama, asked why Sullivan was not empowered under case law to conduct an independent evaluation of the department's new position. He noted that if Sullivan were to deny the motion to dismiss, Flynn or the department could simply return to the appeals court to press their case again.

And Henderson said Flynn's attorneys were seeking a “drastic remedy” in urging the appeals court to weigh in before Sullivan has had a chance to, especially since Sullivan may ultimately reject Gleeson's position and decide in favor of the Justice Department.