US appeals court judges yesterday voiced scepticism toward a bid by President Donald Trump’s former national security adviser Michael Flynn to compel a federal judge to immediately drop the criminal case against him as the Justice Department has demanded despite Flynn twice pleading guilty to lying to the FBI.
Ten judges from the US Court of Appeals for the District of Columbia Circuit heard fresh arguments in the politically charged case after a three-judge panel of the same court, in a 2-1 ruling on June 24, had directed US District Judge Emmet Sullivan to grant the Justice Department motion to clear Flynn.
Flynn, a retired Army lieutenant general, was charged under former Special Counsel Robert Mueller’s investigation that detailed Russian interference in the 2016 US election to boost Trump’s candidacy.
Some of the judges questioned whether it would be premature for them to end the case now, before Sullivan has even ruled on the Justice Department’s request for dismissal.
“The integrity and independence of the courts is also at play here,” Judge Cornelia Pillard told Justice Department lawyer Jeff Wall, asking whether any “self-respecting” federal district judge “would simply jump and enter an order without doing what he can to understand both sides.”
“And your position,” Pillard told Flynn’s lawyer earlier in the hearing, “is that, ‘No, he can’t hear both sides on the law and he has to drop the case like a hot potato.’”
Democrats and other critics have accused Attorney-General Bill Barr of protecting Trump’s friends and allies in this and other high-profile criminal cases, warping the rule of law.
Trump on July 10 also commuted the prison sentence of his friend and adviser Roger Stone, who was convicted of lying under oath to lawmakers investigating Russian election meddling.
Flynn pleaded guilty two times to lying to the FBI about his conversations with Russia’s then-ambassador, Sergey Kislyak, concerning US sanctions imposed on Moscow under President Barack Obama before Trump took office in 2017.
Judge Thomas Griffith during the hearing suggested that Sullivan can scrutinise whether Flynn had been given favourable treatment because he is a Trump ally.
Griffith also said Sullivan appeared to be simply “educating” himself by holding a court hearing before ruling on the Justice Department’s request.
“The judge is not simply a rubber stamp,” Griffith said, echoing words Sullivan has used in the case.
Sidney Powell, Flynn’s lawyer, during the hearing accused Sullivan of “usurping” the job of a prosecutor and said the judge “impermissibly sallied forth to right the wrongs that he perceived.”
Wall told the judges that Sullivan lacks the constitutional authority to second-guess the dropping of the Flynn case.
Judge David Tatel pressed Wall over that argument, asking, “Don’t courts regularly scrutinise the executive’s stated justifications?”
Wall also suggested the possibility that the Justice Department moved to drop the Flynn case because of findings that have not been made public. “It may be possible the attorney general had before him information that he was not able to share with the court,” Wall said, without offering specifics.
In asking the full DC Circuit court to reconsider the three-judge panel’s ruling, Sullivan had said the Justice Department’s move to clear Flynn was unprecedented and warranted careful scrutiny.
The judges will decide either to order an end to the case or to let Sullivan hear arguments on dismissing the charges.
The DC Circuit’s decision potentially could be appealed to the US Supreme Court.
After pleading guilty, Flynn switched lawyers to pursue a scorched-earth tactic that accused the FBI of setting him up.
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