Flynn's Attorney Says Judge Overseeing Case Has Lost 'Neutrality'

Michael T. Flynn wearing a suit and tie Former national security advisor general Michael Flynn leaves after the delay in his sentencing hearing at US District Court in Washington DC Dec. 18 2018

A federal appeals court on Tuesday is considering whether former national security adviser Michael Flynn should have his case dismissed immediately because he shouldn't have been interviewed by the FBI in the early days of the Trump administration and thus should never have pleaded guilty to lying, according to the Justice Department's reasoning.

He was convicted in former special counsel Robert Mueller's investigation into alleged Russian interference into the 2016 US election.When moving to undo Flynn's charges, the DOJ reasoned in May that the defendant should not have been interviewed by the Federal Bureau of Investigation (FBI) in January 2017 as it lacked "a legitimate investigative basis", and that Flynn's statements to the FBI - which he later confessed were lies - about his contacts with then Russian Ambassador to the United States Sergey Kislyak were not "material even if untrue".

The hearing, which lasted almost four hours, is the latest in Flynn's tangled criminal and political saga.

Wall, the government's top Supreme Court lawyer, made the stunning claim during a Tuesday hearing on the Flynn case in front of the full D.C. Circuit Court of Appeals.

Flynn's lawyer Sidney Powell and Justice Department lawyer Jeff Wall pressed the judges during a hearing lasting about four hours to prevent Sullivan from using his discretion on whether to grant the department's motion for dismissal. The Justice Department is supporting Flynn's efforts to get an appeals court intervention.

A ruling against Flynn would not undo his guilty plea or end the case but simply return it to Sullivan for a hearing on the government's request to dismiss.

In June, an appellate panel of three judges ruled in favor of Flynn and called for the Washington, D.C. District Court to cease prosecution.

Early questions from the judges dealt with procedure and whether it was premature for their court to step in now, before Sullivan has even ruled on the Justice Department's request for dismissal.

"It's not ministerial and you know it's not", Griffith said.

"The judge has to do some thinking about it, right?"

"The judge", he added, "is not a rubber stamp". Wall began to offer answers along the lines of, "We think X, but if the court disagrees, it should still say Y in the opinion".

Mr. Wall, who argued on behalf of Flynn, said Judge Sullivan doesn't have the authority to buck the Justice Department. He said just as the Justice Department can not be forced to initiate a prosecution, no matter how questionable its motives may be, it also can not be compelled to continue a prosecution that it no longer wants to pursue.

Wall said Barr may have been acting on non-public information when he made that recommendation.

Flynn cooperated with special counsel Robert Mueller's investigation into Russian election meddling.

He pleaded guilty to lying to the Federal Bureau of Investigation about having discussed sanctions during the presidential transition period with the then-Russian ambassador to the United States.

Flynn was awaiting sentencing when the Justice Department announced in May that it was abandoning the case following an internal review.

The judge overseeing Flynn's case, Emmet Sullivan, also took issue with the move to drop charges, and took the rare move of appointing a retired judge to argue the case against Flynn. Gleeson said the motion to dismiss amounted to a gross abuse of power.

Flynn hired new lawyers in June 2019, and then claimed he was innocent and that the Federal Bureau of Investigation had tried to entrap him. Wall, too, said the Justice Department had grown troubled by Sullivan's actions.

"Once the government decides to drop a prosecution, that's it", he said. "He's not entitled to ask any questions about that whatsoever".

Sullivan is simply doing what judges do, Wilkinson argued, and that is seeking to hear both sides before ruling on a motion.

Judge Thomas Griffith suggested that Sullivan can scrutinize whether Flynn had been given favorable treatment because he is a Trump ally. Had the hearing been held as scheduled last month, she noted, the case could have already been over by now.



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