Court appears reluctant to order judge to immediately drop criminal case against Flynn

WASHINGTON — A federal appeals court in Washington on Friday appeared reluctant to order a judge to immediately dismiss the guilty plea of President Trump’s former national security adviser Michael Flynn, suggesting courts have the authority to review whether Justice Department moves to drop a prosecution are ‘‘in the public interest.’’

Flynn, joined by the Justice Department, had asked the appeals court to force US District Court Judge Emmet Sullivan to quickly close the case and put a stop to Sullivan’s examination of the government’s unusual decision to drop the charges against the retired three-star general.

But judges Karen Henderson and Robert Wilkins of the US Court of Appeals for the D.C. Circuit expressed skepticism for Flynn’s argument that Sullivan cannot conduct an independent evaluation or name an outside party to argue against the Justice Department’s May 7 motion.


‘‘If Judge Sullivan had just kept this motion waiting and languishing, that’s one thing,’’ Henderson told Flynn attorney Sidney Powell. ‘‘But he has set a hearing for mid-July. For all we know, by the end of July he will have granted the motion. You also know courts have said he’s not a ‘mere rubber stamp’ either. There’s nothing wrong with him holding a hearing; there’s no authority I know of that says he can’t hold a hearing.’’

Wilkins agreed, citing two cases in which he said the Supreme Court upheld the authority of federal judges ‘‘to perform an independent evaluation’’ before granting a government motion to drop a prosecution.

‘‘You’re saying the Supreme Court got it wrong,’’ he asked.

‘‘No,’’ Powell said, ‘‘I’m saying the independent review of the record consists of just that, and the record in this case is extremely well documented of prosecutorial misconduct, and suppression of [exculpatory] evidence which would warrant dismissal in any circumstance.’’

‘‘The government has quit and it’s time to leave the field,’’ Powell said, adding, ‘‘the toll it takes on a defendant to go through this is absolutely enormous.’’


Flynn was the highest-ranking Trump adviser convicted in special counsel Robert Mueller’s investigation of Russian interference in the 2016 election. He pleaded guilty to lying to federal agents about his pre-inauguration contacts with Russia’s ambassador.

The appeals court hearing Friday came two days after a former judge that Sullivan appointed to argue against the Justice Department characterized its plan to abandon the case as a ‘‘gross abuse of prosecutorial power.’’

The highly unusual parallel proceedings raise questions about the scope of judicial power to check the Trump administration and whether a judge can sentence a defendant the government no longer wants to prosecute.

Sullivan refused to sign off last month on the Justice Department’s request to withdraw the charges against Flynn, and instead appointed former New York federal judge John Gleeson to argue against the department’s position to help him decide how to proceed. Gleeson issued a stinging rebuke in a brief filed Wednesday, writing that the ‘‘government has engaged in highly irregular conduct to benefit a political ally of the president.’’

Sullivan scheduled a July 16 hearing on the Justice Department’s controversial move for dismissal. But Flynn took the rare step of asking the appeals court to get involved midstream to force Sullivan’s hand, and accused Sullivan of bias. Solicitor General Noel Francisco joined Flynn in arguing that the judge has no power to second-guess the government’s prosecution decisions and said it would be unconstitutional for the court to refuse to dismiss when the defendant and the prosecution are in agreement.


After the appeals court agreed to review Sullivan’s actions, the judge hired a high-profile trial lawyer, Beth Wilkinson, to explain the judge’s reasons for investigating whether dismissing the case is legally appropriate and in the public interest.

Before the Justice Department’s reversal in May, the government withdrew a request for leniency and said it no longer sought a sentence at the ‘‘low-end’’ of the zero-to-six-month range for Flynn. Instead of proceeding to sentencing, Attorney General William P. Barr ordered a review of Flynn’s case, which found the FBI had no valid basis to question Flynn, so any lies he told were irrelevant to any crime.

In setting up a process to review the department’s actions, Sullivan also asked Gleeson — a former mob prosecutor — to examine whether Flynn may have committed perjury while pleading guilty to a crime that he and the Justice Department now say is no longer a crime. Gleeson advised Sullivan in his filing this week not to impose contempt of court penalties on Flynn, but to continue to the sentencing phase of the case.

Prosecutors have broad authority to make charging decisions, but federal rules also require prosecutors to get permission from the presiding judge to formally dismiss charges. In this case, Flynn admitted lying before two different judges and told Sullivan at a 2018 hearing that no one had coerced him to admit his guilt and that he had no intention of taking back his plea.


Federal rules give Sullivan a narrow window to consider whether dismissing the case is in the public interest. Legal experts and retired judges disagree about the scope of Sullivan’s authority, offering different interpretations of a 2016 D.C. Circuit opinion that noted the judiciary generally lacks authority to ‘‘second-guess’’ charging decisions by prosecutors.

Sullivan’s position has drawn support in court filings from outside groups including a nonpartisan organization of former state and federal officials and a group of two dozen former federal judges appointed by presidents from both parties.