Judge in Michael Flynn case defends decision not to immediately drop criminal case

Gen. Michael Flynn, former national security adviser to US President Donald Trump, leaves Federal Court on December 1, 2017 in Washington, DC.

Brendan Smialowski | AFP | Getty Images

Federal Judge Emmet Sullivan on Monday defended his refusal to immediately grant the Justice Department’s request to drop its case against President Donald Trump’s former national security advisor, Michael Flynn.

Sullivan should not be required to “serve as a mere rubber stamp,” his attorneys told a federal appeals court, which is being asked by Flynn’s lawyers to force Sullivan to grant the Justice Department’s request.

Sullivan’s lawyers argued in a lengthy brief that the appeals court should not “short-circuit” Sullivan’s evaluation of the Department of Justice’s motion to dismiss its charge against Flynn.

“Mr. Flynn’s case has garnered considerable attention. But that is no reason to resolve it outside the normal judicial process,” lawyers for Sullivan said. “Because there is no reason for this Court to ‘enter the fray now’ … the petition should be denied.”

The DOJ last month abruptly dropped its prosecution of Flynn, who had repeatedly pleaded guilty in court to lying to the FBI about his conversations with former Russian Ambassador Sergey Kislyak in the weeks prior to Trump’s inauguration.

Rather than immediately grant the request, Sullivan has appointed retired Judge John Gleeson to make legal arguments on why the case should continue, and to analyze whether he should hold Flynn in criminal contempt for perjury for pleading guilty to a charge of which he now claims he is innocent.

“It is unusual for a criminal defendant to claim innocence and move to withdraw his guilty plea after repeatedly swearing under oath that he committed the crime,” lawyers for Sullivan said in a 46-page court filing in the U.S. Circuit Court of Appeals for the District of Columbia.

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“It is unprecedented for an Acting U.S. Attorney to contradict the solemn representations that career prosecutors made time and again, and undermine the district court’s legal and factual findings, in moving on his own to dismiss the charge years after two different federal judges accepted the defendant’s plea,” Sullivan’s lawyers wrote.

Flynn’s lawyers had asked the appeals court to drop the case and assign any future court proceedings to another judge. A panel of judges on that bench ordered Sullivan to respond to Flynn’s request by Monday.

Flynn’s lawyer did not immediately respond to CNBC’s request for comment on Sullivan’s brief.

Attorneys for Sullivan, a U.S. District Court judge in Washington, D.C., argued in the filing that it would be “extraordinary” and  “inappropriate” for the appeals court to force his hand in Flynn’s case.

The brief argues that the DOJ’s sudden reversal presented Sullivan with a slew of “substantial” questions, including what he should do about Flynn’s multiple sworn statements “where he repeatedly admitted to the crime and to the voluntariness of his guilty plea, only to now claim that he never lied to the government and was pressured and misled into pleading guilty?”

The Justice Department requested to dismiss Flynn’s case in May, arguing that the retired lieutenant general’s lie in his January 2017 interview with the FBI was not “material” to an ongoing investigation. That conclusion came after Attorney General William Barr asked a U.S. attorney to review the DOJ’s handling of Flynn’s case.

Sullivan noted to the appeals court that this conclusion directly contradicted the DOJ’s previous claim that Flynn’s lie about his conversations with Kislyak was “absolutely material.”

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The judge’s brief also defended his decision to appoint Gleeson to present counterarguments.

With Flynn and the Justice Department both requesting dismissal, “Someone needs to fill the adversarial gap to ensure full consideration of the issues, and a former prosecutor and federal judge is well positioned to do so,” Sullivan’s lawyers said.