Former National Security Adviser Michael Flynn claimed that his judge had “hijacked” his case in a Monday court filing seeking to wind down the litigation around the Justice Department’s efforts to drop the prosecution.
Flynn argued against District Judge Emmet Sullivan’s request that the D.C. Circuit Court of Appeals reevaluate en banc whether the judge necessarily has to dismiss Flynn’s case, given that Flynn and the Department of Justice both agree the case should be dismissed.
The current fight over whether the full appeals court should get involved is the latest remarkable development in what has been an extraordinary series of twists and turns in the case.
Flynn pleaded guilty to lying to the FBI in 2017 and affirmed his guilt twice in court. However, when the Justice Department reversed course on the prosecution in May and sought the case’s dismissal, Sullivan held off granting the request immediately so that he could receive outside briefing in opposition to it.
Flynn successfully convinced a three-judge appellate panel to order the case be immediately dismissed — an order Sullivan is now asking the full appeals court to reconsider.
Flynn, in the latest filing, said that Sullivan’s efforts to “delay and generate litigation” against him were “unconstitutional.”
“Judge Sullivan’s stubborn disagreement with the Government’s decision to dismiss the case does not confer the right to contest it himself or through his amicus,” Flynn wrote. “His actions smack of vindictive animus against General Flynn and judicial overreach that have no place in America’s justice system.”
If allowed to stand, the appeals panel’s previous decision ordering Sullivan to drop the case would severely curtail the judiciary branch from probing evidence of improper motives in the Justice Department prosecutorial decisions.
In defending that decision on Monday, Flynn argued that Sullivan did not have the standing to now ask the full appeals court to examine the dispute.
Flynn additionally argued that his own freedom had been “impaired” so far in the 10 weeks that the case has dragged on since the DOJ dismissal request.
“[T] the gravity of the district court’s usurpation of power demands a prompt dismissal,” Flynn wrote.
The filing also took a potshot at retired judge John Gleeson, whom Sullivan appointed to oppose the DOJ dismissal request.
Flynn cited a case involving Gleeson that Flynn said showed why the appeals court should let the dismissal order stand now.
“As the Second Circuit wrote when reversing then Judge Gleeson for self-aggrandizing his role in reviewing a deferred prosecution agreement, to do otherwise would turn “the presumption [of regularity] on its head,” Flynn recounted.
The appellate panel that had sided with Flynn in the previous round of litigation was made up of a majority Republican appointees. However, the full circuit court is made up of a majority of Democratic appointees, and already they have signaled their skepticism towards the panel’s decision by temporarily putting the dismissal order on hold.
Read Flynn’s attorneys’ filing below: