Judges skeptical toward Flynn's bid to end case

Cheryl Sanders
August 13, 2020

While the lawyers seemed able to address most of the judges' concerns, there were still signs of disagreement.

The court is not deciding whether the case should be dismissed or whether the Justice Department had good reason to move to drop it in May despite Flynn's own guilty plea.

Flynn, a retired Army lieutenant general, pleaded guilty two times to lying to the Federal Bureau of Investigation about his conversations with Russia's then-ambassador, Sergey Kislyak, concerning USA sanctions imposed on Moscow under President Barack Obama before Trump took office in 2017.

The rehearing by the full 10-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit wiped out a 2-1 ruling by a three-judge panel of the same court in late June ordering Sullivan to immediately grant the DOJ motion to clear Flynn. Judge David Tatel pressed Wall over that argument, asking, "Don't courts regularly scrutinize the executive's stated justifications?"

Democrats have said the Flynn case is an example of Attorney General William Barr meddling improperly to help Trump's friends and political allies.

"This is just another example of how corrupt and biased Mueller prosecutors unfairly targeted Trump aides and associates to build a phony case of Russian Federation collusion", said Peter Flaherty, Chairman of the National Legal and Policy Center.

Some judges also probed under what circumstances a judge could question a case dismissal, creating hypothetical scenarios for Powell and Wall to address.


Gen. Michael Flynn's attorney Tuesday said the judge overseeing his case should have no further involvement moving forward. The Supreme Court would be very unlikely to take the case, and Flynn would remain in legal limbo while the case continued to drag on.

The three-judge panel said Sullivan was wrong to appoint the retired judge and ordered him to dismiss the case.

She also argued that Flynn has suffered enough, for four years has been falsely accused of being a traitor, and has lost millions of dollars trying to defend himself. "The judge is not simply a rubber stamp", he said. She asserted he should be allowed to rule on the case and no instructions are necessary.

"And your position", Pillard told Flynn's lawyer, "is that 'No, he can't hear both sides on the law and he has to drop the case like a hot potato'".

Though full court hearings are extremely rare at the DC Circuit, this is the second time the court has reheard a case related to the Mueller investigation - the first being the House subpoena of former White House counsel Don McGahn, which the court decided last week by affirming Congress' right to sue and sending proceedings back to the trial-level judge. Sullivan's actions have created an "unconstitutional" process that lacks any semblance of impartiality, and he has "so invested himself" for the objective of prosecuting Flynn, Powell argued.

Wilkinson downplayed any harm prolonging the case causes to Flynn, saying he's not in custody and was even allowed to travel overseas.

Wall pointed out that Sullivan's previous actions, including briefs to the appeals court, indicated that he planned an intrusive questioning of the DOJ's reasons for dropping the case.


"The district court is doing what district court's do - preparing to rule on a motion", Wilkinson said.

"[Sullivan's] counsel seems to be defending the process on the grounds that it might be meaningless".

"That tepid defense gives away the game", Wall said.

He said either Sullivan in fact wants to intrude on the executive branch or he "can't possibly call into question" the dismissal on its face. Unless the hearing in his courtroom produces something remarkable, he will probably grant the DOJ's dismissal rather than risk getting slapped down on appeal.

Tuesday's arguments will by heard by 10 of the D.C. Circuit's 11 active judges. President Trump has not ruled out pardoning Flynn.

In June, documents were released indicating that in early 2017, both then-President Barack Obama and Vice President Joe Biden were personally involved in the case.


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