Former Trump advisor Michael Flynn asks appeals court to remove judge and dismiss criminal case – CNBC

Michael Flynn, former U.S. national security adviser, exits federal court in Washington, D.C., on Monday, June 24, 2019.

Andrew Harrer | Bloomberg | Getty Images

Former national security advisor Michael Flynn on Tuesday asked a federal appeals court to order a lower court to grant the Justice Department’s controversial request to dismiss the criminal case.

Flynn also asked the U.S. Circuit Court of Appeals for the District of Columbia to take the case away from the lower court judge who has so far refused to sign off on that dismissal request.

That judge, Flynn’s lawyers argued in their appeals filing, by planning to continue the case “indefinitely” despite the wishes of the Justice Department is “rubbing salt in General Flynn’s open wound from” the “misconduct” of prosecutors in the case.

The appeals court filing came days after Judge Emmet Sullivan appointed a former federal judge to argue against the Justice Department’s highly unusual request to drop the case against Flynn in U.S. District Court in Washington, D.C. 

Sullivan also has asked the ex-judge, John Gleeson, to analyze whether he should hold Flynn in criminal contempt for perjury for twice pleading guilty to a charge that he now says he is innocent of.

The retired Army lieutenant general has admitted, under oath, to lying to FBI agents about his discussions with Russia’s ambassador to the United States in the weeks before President Donald Trump was inaugurated.

Flynn, who briefly served as Trump’s first national security advisor, was awaiting sentencing at the time that the Justice Department, in a bombshell move, this month said it wanted Sullivan to toss the case.

Flynn’s lawyer, Sidney Powell, in her appeals court filing Tuesday, suggested that Sullivan has “exceeded [his] authority and egregiously abused [his] discretion by failing to grant the Government’s Motion to Dismiss the Criminal Information and, instead, appointing an amicus [Gleeson] to oppose the motion and to propose contempt and perjury charges against General Flynn.”

Powell also objects to Sullivan’s decision to allow people and groups not involved in the case to file legal briefs objecting to or supporting the case’s dismissal.

Powell wrote that Sullivan, in his recent actions, has disregarded the constitutional rule that “the power to prosecute” rests “solely in the executive branch.”

“The district court has no authority to adopt the role of prosecutor or change the issues in the case by inviting or appointing [Gleeson and other outside parties] to perform the investigation or prosecution that the court deems appropriate,” Powell wrote.

Meanwhile Tuesday, Sullivan issued an order directing Gleeson to file his legal arguments by June 10, which is also the day that any outside party can file so-called friend-of-the-court arguments on the dismissal request or the possibility of a contempt charge.

Sullivan scheduled oral arguments to be heard for those issues on July 16.

The Justice Department’s request to dismiss the case came after it concluded that it had a duty to drop the charges after finding that the FBI did not have grounds to conduct a counterintelligence investigation of Flynn at the time agents interviewed him, Attorney General William Barr has said.

Timothy Shea, interim U.S. attorney for the District of Columbia, in the dismissal request wrote that even if Flynn had lied, the government “does not believe Mr. Flynn’s statements were material” in a legal sense.

The Justice Department also does not believe it would be able to prove Flynn guilty of making false statements beyond a reasonable doubt, Shea wrote.

Former Justice Department employees have condemned the move to drop the case, while Trump and his supporters have praised the decision.

Powell, in her filing Tuesday, wrote that the Justice Department “has sole authority to dismiss this prosecution,” and has “presented a well-documented motion explaining its reasons,” which include failure to turn over certain documents to Flynn before an outside prosecutor was appointed to review the case.

“The egregious Government misconduct, and the three-year abuse of General Flynn and his family, cry out for ending this ordeal immediately and permanently,” the lawyer wrote. 

“The district judge’s orders reveal his plan to continue the case indefinitely, rubbing salt in General Flynn’s open wound from the Government’s misconduct and threatening him with criminal contempt.”

— Additional reporting by CNBC’s Kevin Breuninger.


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