WASHINGTON — A federal appeals court appeared unimpressed on Friday by arguments from President Donald Trump’s former national security adviser Michael Flynn and the Justice Department that a judge had little power to probe the government’s decision to drop the criminal case against Flynn.
Flynn and DOJ raced to the US Court of Appeals for the DC Circuit to stop an inquiry by US District Judge Emmet Sullivan into the government’s stunning about-face last month in Flynn’s case.
Flynn pleaded guilty to lying to the FBI and prosecutors had pursued the case for two years when the DOJ announced last month that it had changed course under orders from Attorney General Bill Barr. With Flynn and the Justice Department now on the same side, Sullivan appointed John Gleeson, a former federal judge, to present arguments against dismissal and scheduled a hearing in his court for July 16.
President Donald Trump has made clear that he supports Flynn’s attacks on the prosecution, which came out of special counsel Robert Mueller’s investigation, and the Justice Department’s decision to drop it.
But unless the president issues a pardon, Flynn and the Justice Department need an order from Sullivan to actually end the case. Whether Sullivan grants the government’s request to dismiss it on his own, or is forced to by a higher court, is what’s at stake before the DC Circuit.
It’s a highly unusual situation that pits a sitting federal judge against senior officials at the Justice Department. Federal appeals courts by design review decisions by district judges, but it is rare for the judge to be an active participant.
On Friday, all three judges on the DC Circuit panel questioned why Flynn and the Justice Department shouldn’t let Sullivan’s process play out before bringing the case to the circuit. Appeals courts generally are hesitant to consider cases before there’s a ruling from a lower court.
Judge Karen LeCraft Henderson said it wasn’t as though Flynn’s case was “languishing” — Sullivan had set a fast schedule, she noted, and the US Supreme Court had already held that a judge wasn’t a “rubber stamp” in these types of situations.
“You also know that the courts have said he’s not merely a rubber stamp,” Henderson told Flynn’s lawyer Sidney Powell. “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.”
The DC Circuit panel includes one of Trump’s appointees, Judge Neomi Rao; Trump has made the confirmation of conservative judges a priority and touted them as a political success for him and Republicans.
Rao expressed some concern about Sullivan’s decision to appoint an outside lawyer to argue against dismissal, questioning whose interest Gleeson represented, but she also noted in questions she posed to Powell that the Supreme Court had said judges could appoint lawyers to prosecute contempt-of-court cases, for instance.
Henderson and the third judge on the panel, Judge Robert Wilkins, both served as district court judges before they were confirmed to the DC Circuit, and they pushed back on arguments pressed by Powell and Principal Deputy Solicitor General Jeffrey Wall that judges lacked authority to do any kind of in-depth, independent review in these types of situations.
Under federal court rules, the government can’t just drop a criminal case on its own once it’s in court. They have to file a motion and ask for “leave of court” to dismiss it. Sullivan’s position is that the “leave of court” rule means judges have authority to do their own review, including appointing an outside lawyer to present alternative views. Flynn and the Justice Department disagree.
Wilkins repeatedly said he didn’t understand how Flynn and the Justice Department’s position squared with a 1977 decision by the US Supreme Court, Rinaldi v. United States, that said judges had at least some discretion when the government asked to dismiss a criminal case. Wilkins said dismissing Flynn’s case after he had pleaded guilty also implicated decisions made by the court, because two judges — another judge presided before Sullivan — made factual findings about the government’s evidence against Flynn when they accepted Flynn’s plea.
Wilkins expressed concern about a hypothetical situation where the government wanted to drop a criminal case against a white law enforcement officer accused of excessive force against a Black victim, where prosecutors didn’t think a jury would believe the victim because of his race. Wilkins questioned what discretion a judge would have if the government had made a racist decision.
Wall said that it was different from Flynn’s case because a prosecutorial decision rooted in racial discrimination was unconstitutional, but he argued broadly that a court didn’t have the power to force the government to take a case to trial — or, in Flynn’s case, to go through with sentencing.
Wilkins noted that even if a judge couldn’t force the government to continue to prosecute a case, the judge could leave a case in limbo and the government would then have to contend with public perception and any political pressures.
Henderson pointed out that it was still possible Sullivan could decide to dismiss the case after hearing arguments. Sullivan was an “old hand” and an “excellent” trial judge, she said, and just because he’d asked Gleeson to present the other side didn’t mean he had to accept those arguments.
“I don’t see why we don’t observe regular order and allow him to rule,” she said.
Sullivan is the longest-serving active judge on the DC federal bench. He was nominated by President Bill Clinton and confirmed in 1994. He’s no stranger to politically explosive prosecutions, and has a reputation for strictly policing the government’s conduct in criminal cases. He presided over the Justice Department’s botched public corruption case against the late Alaska senator Ted Stevens, which DOJ ended up dropping because of prosecutorial misconduct accusations.
The action before the DC Circuit hasn’t halted the proceedings before Sullivan. Earlier this week, Gleeson filed his brief. Gleeson not only defended Sullivan’s authority to explore the Justice Department’s decision, but he also accused the department under Barr of abusing its power to benefit a Trump ally.
“The Department of Justice has a solemn responsibility to prosecute this case — like every other case — without fear or favor and, to quote the Department’s motto, solely ‘on behalf of justice.’ It has abdicated that responsibility through a gross abuse of prosecutorial power, attempting to provide special treatment to a favored friend and political ally of the President of the United States,” Gleeson wrote. “It has treated the case like no other, and in doing so has undermined the public’s confidence in the rule of law.”
Flynn testified under oath in court that he lied to the FBI during an interview in January 2017 shortly after Trump took office. The FBI had transcripts of calls in December 2016 between Flynn and Sergey Kislyak, the Russian ambassador to the United States at the time, where the two men discussed Russia’s response to sanctions imposed by the Obama administration as well as an upcoming United Nations vote on Israeli settlements. Flynn told the FBI he hadn’t asked Kislyak to take any action on those issues, but according to his plea deal, that was a lie.
Last month, the US intelligence community declassified the transcripts of Flynn’s calls with Kislyak. During a Dec. 29, 2016, call when the two men discussed the Obama administration’s decision to sanction Russia after the US intelligence community concluded it had meddled in the election, Flynn asked Kislyak to relay a message to Russian officials because he didn’t want the Obama administration “to box us in.”
“Make it reciprocal,” Flynn told Kislyak, referring to Russia’s response to the sanctions. “Don't - don't make it - don't go any further than you have to. Because I don't want us to get into something that has to escalate, on a, you know, on a tit for tat. You follow me, Ambassador?”
Flynn agreed to cooperate with the government as part of his plea agreement in December 2017, but he later changed course, fought to withdraw his guilty plea and challenged the legitimacy of the entire prosecution. His new, adversarial stance tracked Trump’s own attacks on the investigation into Russian interference in the 2016 election. His sentencing date was repeatedly delayed.
On May 7, the Justice Department announced it was dropping the criminal case against Flynn. Although Barr had appointed a US attorney in Missouri to review Flynn’s case — a sign that senior leadership at DOJ might intervene — the federal prosecutors in Washington involved in the case continued to defend it against attacks from Flynn and his lawyers in court. The motion to dismiss the case was signed only by Timothy Shea, who was serving at the time as the interim US attorney in DC; none of the prosecutors were on it.
Shea’s motion cited evidence that Jeffrey Jensen, the US attorney for the Eastern District of Missouri, uncovered during his probe into the Flynn case. Shea wrote that the Justice Department was no longer convinced that, by the time FBI officials interviewed Flynn in January 2017 about his contacts with Russians, the investigation “was conducted with a legitimate investigative basis.”
Shea also wrote that he wasn’t convinced prosecutors could prove “beyond a reasonable doubt” that Flynn lied, saying his answers to the FBI in 2017 were “vague” and not material to the broader counterintelligence investigation into Russian interference in the election. As for Sullivan’s authority, Shea wrote that the federal rules for criminal cases dictated that the government only could dismiss a prosecution “with leave of court,” but he argued the judge’s power to interfere at that point was “narrow” and “circumscribed.”