Flynn judge defends refusal to rubber-stamp case dismissal
The judge overseeing Michael Flynn’s prosecution defended his decision not to rubber-stamp the Justice Department’s dismissal of its case against President Donald Trump’s former national security advisor.
U.S. District Judge Emmet Sullivan in Washington said in a brief filed Monday that he has the discretion to further consider the matter, which has sparked debate about the independence of both the judiciary and the Justice Department.
“The question before this court is whether it should short-circuit this process, forbid even a limited inquiry into the government’s motion, and order that motion granted,” Sullivan said. “The answer is no.”
Sullivan said the unique facts of Flynn’s case required that dismissal be weighed carefully, including the fact that the defendant was claiming innocence after repeatedly swearing under oath that he committed the crime. The judge also noted that the dismissal request was signed by a prosecutor not previously involved in the case.
“It is unprecedented for an Acting U.S. Attorney to contradict the solemn representations that career prosecutors made time and again, and undermine the district court’s legal and factual findings, in moving on his own to dismiss the charge years after two different federal judges accepted the defendant’s plea,” Sullivan said in his brief. The lead prosecutor in the case stepped down just before the request was filed.
The judge also said the government’s request cited “minimal legal authority” and omitted important facts. “For now, it suffices to say that the unusual developments in this case provide at least a plausible reason to question’ the bona fides’ of the government’s motion,” Sullivan said.
Flynn’s lawyer, Sidney Powell, didn’t immediately respond to a message seeking comment.
Flynn, who pleaded guilty to lying to FBI agents during the Russia probe, has argued that Sullivan has no choice but to grant the government’s May 7 motion to dismiss the case. The U.S. Court of Appeals in Washington last month ordered the judge to respond to Flynn’s claim that he exceeded his authority by not immediately doing so.
While judges are often overruled by appeals courts, it’s rare for judges to be required to personally explain their actions. Sullivan’s unusual brief is the latest twist in a case that the president and his allies in recent months have slotted into a narrative that casts the investigation of Russian interference in the 2016 election as a plot by Obama-era officials to undermine the incoming administration.
Attorney General William Barr’s Justice Department on May 7 filed a surprise request to dismiss the case, saying Flynn’s lies weren’t “material” to the Russia probe and that the FBI agents did not have a proper “investigative purpose” in interviewing him.
But instead of immediately granting the government’s request, Sullivan named a former federal judge and mob prosecutor, John Gleeson, to argue against the Justice Department’s position and address whether Flynn should be held in contempt of court for perjury. Sullivan has also accepted outside briefs on the matter.
Flynn admitted lying to the FBI agents about his contacts with the Russian ambassador to the U.S. in December 2016. Trump fired Flynn after it was revealed that he’d also lied to Vice President Mike Pence about the conversations.
Sullivan, who was appointed by President Bill Clinton, hired Washington litigator Beth Wilkinson to file his response with the appeals court. Taxpayers will be footing the bill for Wilkinson’s work.
Wilkinson is no stranger to politically charged cases. She represented Supreme Court Justice Brett Kavanaugh during his fraught confirmation to the high court. But she is also representing Summer Zervos, a former contestant on Trump’s reality TV show “The Apprentice” who sued the president for defamation after he publicly denied her claims that he sexually assaulted her.