The federal judge who is handling the extraordinary proceedings in the Michael Flynn case told an appeals court on Monday it should not yet intervene in the matter, as Flynn is seeking.

The judge, U.S. District Judge Emmet Sullivan, of D.C., pointed to the “ unique facts” of the case, which included Flynn’s “unusual” efforts to recant his guilty plea and the Justice Department’s “unprecedented” actions to contradict its previous statements in the prosecution.

Arguing that those “reversals” presented the judge with “several substantial questions,” Sullivan defended his move to hold off on dropping Flynn’s case, after a request from the Justice Department that it be dismissed last month. Sullivan instead has set up a process for some of the concerns about the Justice Department’s shocking reversal in the Flynn case to be aired.

“The question before this Court is whether it should short-circuit this process, forbid even a limited inquiry into the government’s motion, and order that motion granted. The answer is no,” Sullivan told the appeals court Monday. Sullivan noted that he still might ultimately grant the DOJ’s request to drop the case, “so Mr. Flynn can obtain the exact relief he seeks through ordinary judicial process.”

Sullivan’s brief with the appeals court was submitted on his behalf by Beth Wilkinson, a veteran D.C. attorney Sullivan hired to represent him in the dispute. The brief argued that Sullivan did not overstep his authority by tasking a former judge to oppose the DOJ’s request to drop Flynn’s case. He noted that he had not made any decisions on the DOJ dismissal request, and once he did, the appeals court “will have an opportunity to review it, without writing on a blank slate.” 

“Mr. Flynn’s case has garnered considerable attention. But that is no reason to resolve it outside the normal judicial process,” Sullivan said

Sullivan’s filing Monday is the latest remarkable twist the case has taken, since Flynn entered a plea deal with special counsel Robert Mueller in December 2017. After the plea deal was unveiled, Flynn twice admitted in court that he was guilty of lying to the FBI in a January 2017 interview about his contacts in late 2016 with Russian officials. A transcript released last week of Flynn’s Russia conversations confirmed that the statements he made to the FBI were false.

But Flynn is now trying to walk away from that plea, and last month the Justice Department said it could no longer defend its prosecution of the former national security advisor, and asked the judge to drop the case as well. Though the Justice Department claimed it learned new information that made it second guess the case, the reversal came after Trump had vehemently criticized the prosecution and was part of a larger pattern of Attorney General Bill Barr undermining Mueller’s probe. 

Rather than immediately granting the dismissal request, Sullivan invited outside parties to weigh in on the case, while the judge himself appointed a so-called “amicus” (or “friend of the court”) to oppose the DOJ dismissal request.

 

“For now, it suffices to say that the unusual developments in this case provide at least a plausible ‘reason to question’ the ‘bona fides’ of the government’s motion,” Sullivan said. “As this Court’s precedents envision, Judge Sullivan can — and arguably must — consider those issues before granting a motion to dismiss.”

Sullivan’s filing zeroed in on questions raised by the recent developments in the case, including how he should handle Flynn’s admission to lying to the Justice Department about his lobbying for Turkey. Those false statements were part of Flynn’s 2017 guilty plea, but the Justice Department did not address them head on in its recent dismissal request, which instead focused on Flynn’s false statements regarding his contacts with Russian officials.

Sullivan pointed to other “notable” aspects of how the Justice Department had gone about the reversal, including the departure from the DOJ of the U.S. Attorney who signed it soon after the filing was submitted.

“The motion did not explain the absence of any line prosecutors, including those who had previously prosecuted the case. Nor did it contain any declarations or affidavits from witnesses with personal knowledge supporting the government’s new factual representations,” Sullivan added. He also noted that the Department had yet to withdraw any of the previous filings it submitted while it was still defending its prosecution. He also said that the “length of the government’s motion suggests that its reversal was not an everyday occurrence,” while arguing that it contained “minimal” legal citations backing the key reversal the Department was making about the legitimacy of the FBI’s Flynn investigation.

Sullivan’s resistance to dropping the case prompted Flynn to seek an intervention from the U.S. Court of Appeals for the D.C. Circuit. The appeals court asked Sullivan to respond to Flynn’s request that the appeals court ordered the case dismissed.

Sullivan took another shot at the Justice Department’s recent actions while rebuking a claim that Flynn made in his petition to the appeals court.

“Mr. Flynn likewise errs in seeking mandamus on the basis that further proceedings in the district court ‘will subject [DOJ] to sustained assaults on its integrity,’” Sullivan said. “Judge Sullivan has not disparaged DOJ’s integrity in any way. And although the government has attacked the investigation of Mr. Flynn, it has not asserted any misconduct by the career prosecutors who previously oversaw the case.”

He also winked in a footnote at the irony that Flynn’s current attorneys — whom Flynn hired a year ago to replace the legal team that negotiated his plea — were now questioning Sullivan’s judgement. 

“On counsel’s first appearance in the case, Judge Sullivan disclosed that several years earlier, she had sent him a copy of her book, Licensed to Lie, with the inscription: ‘Judge Emmet Sullivan, to all those who seek, hallow, and do Justice. With the greatest respect and gratitude for your honorable service,’” the footnote recounted. “Neither party objected to Judge Sullivan’s proceeding with the case.” 

Read Sullivan’s filing below: