Attorneys for Michael Flynn on Monday urged a full federal appeals court in Washington not to rehear his case, arguing that an earlier order requiring a U.S. judge to dismiss the prosecution should stand.
In a 19-page filing, the defense for President Donald Trump’s former national security adviser again criticized U.S. District Judge Emmet Sullivan of Washington for seeking to hold a hearing into whether the Justice Department’s May request to undo Flynn’s guilty plea is in the public interest.
“The district court has hijacked and extended a criminal prosecution for almost three months for its own purposes,” Flynn attorneys Sidney Powell and Jesse Binnall wrote in an argument to judges on what is often called the country’s second most powerful court.
Flynn’s defense said Sullivan’s request for a full U.S. Court of Appeals for the D.C. Circuit rehearing to defend his move was unprecedented and “rife with errors and misrepresentations.”
“To allow Judge Sullivan to delay and generate litigation against a criminal defendant is unconstitutional,” they added, because the “Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.'”
Sullivan on July 11 requested a rehearing after a divided three-judge panel ordered him to dismiss the prosecution and said he was wrong to appoint a retired federal judge to argue against the government after it abandoned its adversarial role.
Sullivan’s attorneys argued that the panel majority’s opinion marked a “dramatic break from precedent” that “threatens to turn ordinary judicial process upside down” by shutting down a trial judge’s review of pending motions before he had rendered a decision.
“It is the district court’s job to consider and rule on pending motions, even ones that seem straightforward,” wrote Sullivan’s attorneys, led by Beth Wilkinson. “This Court, if called upon, reviews those decisions — it does not preempt them.”
In a 2-1 ruling against Sullivan in late June, appellate Judge Neomi Rao, a recent Trump nominee, wrote that Sullivan overstepped his role and committed a “clear legal error” by refusing to immediately close the case and appointing former federal judge John Gleeson to act as the court’s amicus counsel.
The panel wrote that Sullivan could not “scrutinize the reasoning and motives of the Department of Justice” in dropping Flynn’s prosecution and that prolonging the case would “constitute irreparable harms that cannot be remedied on appeal.”
But Sullivan’s filing said that Rao’s opinion rushed to judgment, citing precedents stating the government can dismiss a case only with the permission or “leave” of a trial court, and that appeals courts weigh in after lower judges rule, not before. Sullivan said the panel also improperly relied on arguments not raised before him and erroneously gave the government relief — ordering him to approve the Justice Department’s motion — even though it was only Flynn who petitioned the appeals court.
“Any one” of these flaws weaken the legal standard usually required for a writ of mandamus — that no other remedy is available — the type of extraordinary relief Flynn sought to shortcut the regular appeals process, Sullivan’s team argued.
The alternative threatens “to turn mandamus into an ordinary litigation tool,” inviting “forum shopping” by parties to bypass trial judges, according to Sullivan’s team.
Sullivan was to hold a hearing in the past week to scrutinize the politically charged case testing the limits of the judiciary’s power to check the executive branch.
In Monday’s filing, Flynn repeated claims that he is actually innocent despite his sworn admissions, that a guilty plea is not a conviction and that actions by two federal judges voided his pleas.
As a judge, Sullivan has no standing to seek en banc hearing, they argued.
“In lay terms, umpires don’t get to swing bats or run bases; they suffer no harm when one team wins and the other loses,” Flynn’s attorneys argued.
A Justice Department briefing to the appeals court is due later Monday.
At its discretion, the full court can reject Sullivan’s request and require the dismissal of Flynn’s case; vacate the panel’s decision and reconsider Flynn’s petition; require oral arguments; or rule whether and how Sullivan may continue proceedings.
Flynn’s defense has cited recent disclosures by a Barr-ordered review of FBI communications about the case before Flynn’s key interview with investigators in arguing he was railroaded into pleading guilty.
The case of the retired U.S. Army lieutenant general has energized Trump and his supporters who say Flynn was set up by anti-Trump investigators in the FBI. But legal experts said the material was unlikely to convince a judge that agents entrapped Flynn. Many current and former Justice Department officials view the reversal as a troubling sign of the department giving in to pressure from Trump.
“The Government has engaged in highly irregular conduct to benefit a political ally of the President,” Gleeson wrote in a brief requested by Sullivan. Gleeson argued Flynn’s lies about coordinating activities with Russia’s ambassador during the transition amid an investigation into whether Trump’s campaign coordinated with Russia “is about as straightforward a case of materiality as a prosecutor, court, or jury will ever see.”
President Trump in 2017 had said he had to fire Flynn because he lied to Vice President Mike Pence and the FBI. But recently Trump reversed course, saying Flynn’s conduct was lawful and suggested he might pardon Flynn if his prosecution is not dismissed.