A majority of judges on the appeals court for the District of Columbia voiced unwillingness to stop a lower court judge from questioning the Department of Justice (DOJ) about dropping its charges against former Trump adviser Michael Flynn.
During the Aug. 11 virtual hearing, the judges pressed the DOJs and Flynns lawyers on why they should intervene when the district judge, Emmet Sullivan, hasnt yet ruled on the dismissal of the charges.
While the lawyers seemed able to address most of the judges concerns, there were still signs of disagreement.
If the judges allow Sullivan to proceed, it would likely further prolong a case that the DOJ dropped more than three months ago.
Flynn, a retired three-star Army general, pleaded guilty to lying to the FBI in 2017, but later moved to withdraw the plea, saying he was misled and pressured into it.
The DOJ moved to dismiss the case in May after a review highlighted documents indicating that the FBI didnt have a proper investigative purpose to interview Flynn and may have done so only to elicit false statements from him.
A three-judge panel of the appeals court ordered Sullivan to accept the dismissal in June, after which he appealed for a rehearing before the full court of 10 judges (one additional judge recused himself).
Sidney Powell, Flynns lead lawyer and a former federal prosecutor, argued that Sullivan doesnt have any authority to question the dismissal in a situation in which both the prosecutors and the defendant are on the same page and the DOJ submitted extensive explanation for dropping the case.
Some of the judges voiced concerns about future defendants asking for appeals court intervention any time they think a district judge plans to do something impermissible, even before the judge has actually done it.
Representing the DOJ, Principal Deputy Solicitor General Jeffrey Wall said the core issue is separation of powers under the Constitution, which leaves it to the executive branch to bring or drop prosecutions. Even the process of putting the DOJ on the spot about its reasons for dropping the case would intrude on the executives discretion, even if Sullivan eventually grants the motion, he said.
Some judges also probed under what circumstances a judge could question a case dismissal, creating hypothetical scenarios for Powell and Wall to address. One scenario involved a situation in which the defendant hands a bribe to the prosecutor in the presence of the attorney general directly in front of the judge in a courtroom.
Wall pointed out that the extreme nature of the hypothetical highlighted how far removed the discussion was from the facts of Flynns case.
Sullivan should be ordered to accept the dismissal, Powell said, and the case should be reassigned to a different judge because by petitioning for the rehearing, Sullivan has made himself akin to a party in the proceeding and created an appearance of partiality.
In absence of an order to accept the dismissal, Wall said, the court should instruct Sullivan about his limited role, bar him from probing for additional facts, and make him rule quickly.
Sullivans attorney, Beth Wilkinson, said that the judge doesnt plan to ask impermissible questions and the government can refuse to answer anyway. She asserted he should be allowed to rule on the case and no instructions are necessary. She acknowledged that if Sullivan was to deny the motion, he would proceed to sentence Flynn and the DOJ and Flynn would likely win on an appeal.
She said Sullivan shouldnt be disqualified because the three-judge panel ordered him to respond and his petition for rehearing merely suggested the full court should pick up the matter.
Wall argued “that there is now at least a question about appearance of impartiality” because Sullivan issued his petition without being invited by the full court to do so.
Wilkinson downplayed any harm prolonging the case causes to Flynn, saying hes not in custody and was even allowed to travel overseas.
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