The Justice Department said Monday that it would suffer “irreparable injury” if the judge in the Michael Flynn case was allowed to probe the circumstances of its request that the case be dropped.
The Department made the claim in a filing with the full U.S. Court of Appeals for the D.C. Circuit, which is currently considering whether it should rehear a dispute over whether Flynn’s judge must immediately dismiss Flynn’s case.
Flynn’s judge, U.S. District Judge Emmet Sullivan, asked last week for the full appeals court to weigh in on the dispute, after an appellate panel sided with Flynn and ordered that Sullivan drop the case.
The Department said Monday that the panel’s decision was “correct and does not warrant review by the full Court.”
When the Justice Department announced in May that it was seeking to drop its Flynn case, after defending the prosecution for more than two years, Sullivan held off on granting the request and instead set up a process for outside parties to brief him on what to do next.
Flynn then asked the appeals court to intervene, and the Justice Department supported him in his bid, which resulted in the appeals court panel decision in Flynn’s favor.
In its latest filing, the Justice Department pushed back on Sullivan’s arguments that he should be allowed to move forward with the briefing.
“The parties and now a panel of this Court agree that this case should come to an end,” the DOJ said. “Yet the district judge, first through his contemplation of extended and intrusive proceedings on the government’s motion to dismiss and now through his petition for rehearing en banc, insists on keeping the litigation going.”
As for Sullivan’s argument that the appellate panel’s order is premature, since he hadn’t denied the dismissal request yet, the Department said that “That objection misses the point.”
“[A]t stake is not mere consideration of a pending motion, but a full-scale adversarial procedure spearheaded by a court-appointed amicus hostile to the government’s position raising factual questions, relying on extra-record materials, probing the government’s internal deliberations, and second-guessing core prosecutorial judgments,” the Department said.
The filing repeated the Department’s recent claims that “newly available materials” led it to decide that the case should be dropped. The reversal is the latest example of efforts by Attorney General Bill Barr to undo or weaken some of the key prosecutions of special counsel Robert Mueller’s investigation.
Flynn had pleaded guilty in Dec. 2017 to lying to the FBI, and twice in court affirmed that guilty plea. He hired new attorneys in 2019 and, several months later, sought to walk away from the plea deal. The Department at first opposed Flynn’s efforts to get his case dismissed until the shocking reversal in May.
In his own filing with the D.C. Circuit, Flynn claimed Monday that Sullivan had “hijacked” the case and suggested the court proceedings where he had affirmed the guilty plea were not legitimate.
While the appellate panel that sided with Flynn was made up of a majority of GOP appointees, Democratic appointees make up the majority of the full appeals court.
So far, it seems like those judges are skeptical about the panel’s order against Sullivan, as they have already put it on hold for the time being.