Michael Flynn asked an appeals court on Tuesday to intervene in his case, and to take the case away from the district court judge who has so far resisted the Justice Department’s request that its prosecution of Flynn be dismissed.
Flynn is asking the U.S. Court of Appeals for the D.C. Circuit to order the dismissal of the case, and to reverse an order by U.S. District Court Judge Emmet Sullivan appointing a so-called “friend of the court” to argue against the Justice Department’s request to drop the case. Additionally, Flynn is asking for the case to be reassigned to another judge for any further district court proceedings.
“The district court has no authority to adopt the role of prosecutor or change the issues in the case by inviting or appointing amici to perform the investigation or prosecution that the court deems appropriate,” the filing said.
Flynn’s filing is the latest twist in what has been an unprecedented set of developments in his case, which started out as a December 2017 plea deal with special counsel Robert Mueller’s investigation.
In recent months, Flynn has tried to back out from the plea — where he admitted to lying to the FBI about Russian contacts — and sought for the case to be dismissed amid sensational claims of prosecutorial misconduct.
The Justice Department last month made the explosive decision to ask for the case be dropped, claiming it had found new evidence suggesting Flynn should have never been interviewed by the FBI in the first place. The DOJ’s remarkable reversal prompted Sullivan to appoint a retired judge to offer a “friend-of-the-court” (also known as “amicus”) briefing on whether the case should be dropped and on whether Flynn committed perjury in his previous statements to the court affirming his guilty plea.
Flynn is now turning to the appeals court to decide whether the “district court exceeded its authority and egregiously abused its discretion by failing to grant the Government’s Motion to Dismiss the Criminal Information and, instead, appointing an amicus to oppose the motion and to propose contempt and perjury charges against General Flynn, while inviting additional amici.”
His lawyers reiterated claims they previously made alleging that the DOJ officials who prosecuted Flynn withheld information about the January 2017 FBI interview that they were obligated to turn over before his plea.
“General Flynn could swear truthfully that he committed the acts constituting the crime with which he was charged—after all he had no duty to tell FBI line agents about missions he undertook in his capacity as Security Advisor to the President Elect—but he had to accept on faith that the questions were ‘material’ to a legitimate criminal
investigation, even though that was not made clear to him at the time. In truth, they were not,” the filing said.
In previous phases of the proceedings, Judge Sullivan has rejected Flynn’s arguments that prosecutors violated their discovery obligations, and the judge has affirmed that the false statements Flynn told the FBI were material to the Russia probe. The Justice Department only changed its tune on whether the interview was material when it requested the case be dropped last month. The request was filed after months of President Trump and his allies cheering Flynn on in his fight against the prosecutors.
In Monday’s filing, Flynn pointed to an op-ed that John Gleeson — the retired judge Sullivan selected to serve as an amicus — wrote just days before the appointment.
“Nothing in the record casts doubt on the Government’s reasons for moving to dismiss. Nor is there anything outside the record—and certainly nothing cited by the district court—that justifies the outrageous suggestions of ‘impropriety,’ ‘corruption,’ or ‘improper political influence’ flung by the district court’s chosen amicus in the
Washington Post,” the filing said.
In seeking the appeal court’s intervention, Flynn is asking for it to issue a writ of mandamus, which has the effect of allowing him to leapfrog the normal appeals court process.
Flynn said he was filing it because he had “no alternative avenue of relief,” while claiming he “already suffered an unimaginable ordeal at the hands of unscrupulous high-ranking Government officials and a three-year prosecution.”
Flynn said the case should be taken away from Sullivan because of the judge’s “manifest confusion about the facts of this case.” Flynn pointed to comments the judge made when Flynn was supposed to be sentenced in 2018, and specifically the judge’s accusations of treason that he later walked back.
Sullivan’s most recent actions, Flynn wrote, “bespeaks a judge who is not only biased against Petitioner, but also revels in the notoriety he has created by failing to take the simple step of granting a motion he has no authority to deny.”
Less than an hour after Flynn filed his petition with the appeals court, Sullivan issued a scheduling order that said there would be oral arguments in the friend-of-the-court briefing July 16.
Read the filing below:
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