Appeals Court Signals Reluctance to Dismiss Michael Flynn Case

President Donald Trump’s former National Security Adviser Michael Flynn leaves the E. Barrett Prettyman U.S. Courthouse on June 24, 2019, in Washington, D.C. Alex Wroblewski/Getty

At least two judges on the three-judge appeals court panel appeared reluctant to immediately dismiss criminal charges against Michael Flynn, the former Trump Administration national security adviser, indicating that it was too early for them to intervene.

The majority Republican-appointed panel on the District of Columbia appellate court suggested that the proceeding before them—an extraordinary attempt to force the trial court judge handling Flynn's sentencing to favor dismissal—would be premature.

"There's no precedent that allows us to move without an order," Judge Karen L. Henderson, appointed to the circuit court by President George H. W. Bush, said. "I don't see why we don't observe regular order and allow him to rule."

The largely procedural matter turned on whether the actions by the district court judge, Emmet G. Sullivan, were so out of bounds as to warrant instantaneous correction from the court of appeals. This, before Sullivan has decided whether or not to grant the motion for dismissal.

"If he denies the motion," Judge Robert L. Wilkins, appointed to his current position by President Barack Obama, reasoned, "then you can come back here on appeal... and we can decide that issue at that time."

Friday's oral arguments featured Flynn's attorney, Sidney Powell, as well as representatives for the Department of Justice and Sullivan.

The government argued that Sullivan had no latitude to inquire into the U.S. attorney's motives for seeking to dismiss the charge of lying to the FBI against Flynn. Although the suggestion of impropriety in its decision-making had been raised, the government's lawyer, Principal Deputy Solicitor General Jeff Wall, believed that the right arena for accountability would lie outside the courtroom.

"There are political remedies for that but there aren't judicial remedies," such as scrutiny of a dismissal, Wall said.

Beth Wilkinson, a noted trial attorney representing Sullivan before the appellate panel, agreed that it would be inappropriate for the panel to intervene before a verdict had even been rendered by the judge on dismissal.

Wall took the opposite position, arguing that even allowing inquiry into the government's motives would sound a serious alarm about the separation of powers issues embodied in the U.S. Constitution.

"There are real harms that are going to come from the kinds of questions they want to ask," Wall said.

The case stems from the government's criminal prosecution of Flynn for which, until recently, it had sought to send the former national security advisor to jail for six months. In May, the Department of Justice stunned the legal community by announcing it would seek to withdraw the charges—a rarity in a case where the defendant had pleaded guilty twice.

Last year, Flynn shook up his legal strategy by ousting his legal team and hiring new representation. Powell, a conservative commentator and former federal prosecutor, helped to adopt a more confrontational posture toward the case.

In January, Flynn moved to withdraw his guilty plea, alleging the ineffective assistance of his previous counsel. His team was later provided long-awaited evidentiary material they believe shows the 2017 FBI interview, which set off the prosecution, was a pretext for ensnaring Flynn in the legal process.

In one internal note written by an individual involved in the Russia probe, the official asked whether the goal of the FBI's forthcoming interview with Flynn would be "to get him to lie."

In light of these and other documents, Powell called the interview "a setup."

The mystique surrounding the government's decision to drop Flynn's case heightened accusations of political favoritism at the Department of Justice. Direct evidence of nepotism has not been produced, but Trump has made clear his disdain for the legal proceedings that have swept up his formerly most-trusted advisors.

The former U.S. attorney for the District of Columbia also personally signed the motion seeking to drop the case, an unusual matter for the top prosecutor to personally attend to.

Because of the unusual circumstances surrounding the case, Sullivan appointed John Gleeson, a retired federal judge, to present arguments against dismissal that neither the government nor Flynn were willing to raise.

Gleeson urged Sullivan to order the government to stay the course, arguing that the rule governing dismissal of charges in criminal cases was more than a mere formality, it was designed to guard against abuse of process.

He alleged that the Department of Justice has "abdicated" its impartiality "through a gross abuse of prosecutorial power, attempting to provide special treatment to a favored friend and political ally of the President of the United States."

Powell said previously that Gleeson's arguments were "predictable and wrong."

The Flynn case is one of several prosecutions in the saga of the special counsel's probe, which has ensnared several Trump associates who have committed apparent wrongdoing.