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Sept. 20, 2020

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Appeals court seems wary of Flynn case dismissal

Judges skeptical of arguments in matter of ex-adviser

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FILE - In this Feb. 1, 2017 file photo, National Security Adviser Michael Flynn speaks during the daily news briefing at the White House, in Washington.  A federal appeals court hears arguments on whether a judge can be ordered to dismiss the criminal case against former Trump administration national security adviser Michael Flynn now that the Justice Department no longer wants to pursue it.
FILE - In this Feb. 1, 2017 file photo, National Security Adviser Michael Flynn speaks during the daily news briefing at the White House, in Washington. A federal appeals court hears arguments on whether a judge can be ordered to dismiss the criminal case against former Trump administration national security adviser Michael Flynn now that the Justice Department no longer wants to pursue it. (AP Photo/Carolyn Kaster) Photo Gallery

WASHINGTON — A federal appeals court in Washington appeared inclined Tuesday to let a judge decide on his own whether to grant the Justice Department’s request to dismiss the criminal case against former Trump administration national security adviser Michael Flynn.

Multiple members of the Washington court expressed skepticism at arguments from the Justice Department and Flynn’s attorneys that a judge was not empowered to probe the motives behind the government’s decision to abandon the prosecution of Flynn, who pleaded guilty as part of the special counsel’s investigation into the Trump campaign and Russia to lying to the FBI.

The nearly four hours of arguments were the latest step in a long-running legal saga that has prompted an extraordinary power struggle between the executive and judicial branches. The case will almost certainly persist for months if the court rejects Flynn’s efforts to get a speedy dismissal and returns it to U.S. District Judge Emmet Sullivan, who refused to immediately grant the department’s request to drop the prosecution.

The court is not deciding whether the case should be dismissed or whether the Justice Department had good reason to move to drop it in May despite Flynn’s own guilty plea. Instead, the question before the court is a more procedural one: whether Flynn’s attorney is entitled to leapfrog Sullivan and get an order from the appeals court forcing him to dismiss the prosecution before Sullivan himself has had the chance to rule.

A ruling against Flynn would not undo his guilty plea or end the case but simply return it to Sullivan for a hearing on the government’s request to dismiss.

The entire court took up the matter after a three-judge panel, in a 2-1 ruling, ordered Sullivan to dismiss the case. Several of the judges made clear through their questioning that they were deeply skeptical of arguments that Sullivan was not entitled to scrutinize the department’s decision and second-guess the motives behind it.

Judge Thomas Griffith, an appointee of President George W. Bush, bristled when Flynn’s lawyer, Sidney Powell, characterized as “pretty ministerial” the role of a judge when the government and the defendant both agree that a case should be dismissed.

“It’s not ministerial and you know it’s not,” Griffith said. “So it’s not ministerial, so that means that the judge has to do some thinking about it, right?”

“The judge,” he added, “is not a rubber stamp.”

Judge Cornelia Pillard, an appointee of President Barack Obama, said that though the Justice Department is entitled to deference, “the integrity and independence of the court” must also be respected.

She told Jeffrey Wall, the acting solicitor general, that by urging Sullivan to dismiss the case, it was asking him to contradict an order he had already made nearly two years ago when he accepted Flynn’s guilty plea ago at the urging of the Justice Department.

“He previously got on board,” Pillard said of Sullivan, “and you’re saying, ‘actually, never mind.'”

“What self-respecting Article III district judge would simply jump and enter an order without doing what he could do to understand both sides?” Pillard asked, referring to the section of the Constitution that created the judiciary branch.

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