An appeals court on Tuesday considered whether a federal judge must honor the highly unusual request by President Donald Trump’s administration to drop the criminal case against his former national security adviser, Michael Flynn, who twice pleaded guilty to lying to the FBI.
Ten judges from the U.S. Court of Appeals for the District of Columbia Circuit were hearing arguments in the politically charged case after a three-judge panel, in a 2-1 ruling on June 24, directed District Judge Emmet Sullivan to grant the Justice Department’s motion to clear Flynn.
As the hearing got underway, Sidney Powell, Flynn’s lawyer, accused Sullivan of “usurping” the job of a prosecutor and said the judge “impermissibly sallied forth to right the wrongs that he perceived.”
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 interference in the 2016 U.S. election.
Flynn, a retired Army lieutenant general, was charged under former Special Counsel Robert Mueller’s investigation that detailed Moscow’s election meddling. Flynn pleaded guilty twice to lying to the FBI about his conversations concerning U.S. sanctions imposed on Moscow under President Barack Obama with Russia’s then-ambassador, Sergey Kislyak, before Trump took office in 2017.
Sullivan asked the full D.C. Circuit Court to reconsider the three-judge panel’s ruling, saying the Justice Department’s move to clear Flynn was unprecedented and had to be carefully scrutinized. Sullivan has said he cannot act simply as a “rubber stamp” for the department.
After pleading guilty, Flynn changed course and switched lawyers to pursue a scorched-earth tactic that accused the FBI of setting him up.
Tuesday’s arguments were being heard by 10 of the D.C. Circuit’s 11 active judges. Judge Gregory Katsas, a Trump appointee who previously served in the White House Counsel’s office, recused himself.
The judges will either rule to allow Sullivan to hear arguments on the Justice Department’s request to dismiss the charges, or rule against the judge and order an end to the case. The D.C. Circuit’s decision then potentially could be appealed to the U.S. Supreme Court.
Flynn joined Trump’s 2016 campaign and at the Republican National Convention that year led chants of “Lock her up,” referring to Democratic candidate Hillary Clinton. Trump fired Flynn after only 24 days as national security adviser when it emerged that Flynn had misled Vice President Mike Pence and the FBI about his Kislyak dealings.