The federal judge presiding over the case of former Trump adviser retired Lt. Gen. Michael Flynn has told the District of Columbia Circuit Court of Appeals it should stay out of his decision to prolong the case even after the Department of Justice (DOJ) dropped the case against Flynn almost a month ago.
Beth Wilkinson, lawyer for District Judge Emmet Sullivan, said the DOJ motion to dismiss the case “does not conclusively establish that it acted properly” in seeking the dismissal. Because Sullivan hasnt yet decided whether to accept the dismissal, Flynn isnt entitled to a higher courts intervention, she argued in a June 1 response to the appeals courts order.
Sidney Powell, a former federal prosecutor and lawyer for Flynn, said Wilkinsons response “ignores the true facts and the applicable law,” in a response emailed to The Epoch Times.
Sullivan hired Wilkinson after the higher court took the rare move of ordering him on May 21 to respond within 10 days about why he hasnt approved the motion to drop the Flynn case.
Flynn, a former head of the Defense Intelligence Agency during the Obama administration and former national security adviser to President Donald Trump, pleaded guilty in 2017 to one count of lying during an FBI interview. In January, he disavowed the plea and asked the court to allow him to withdraw it.
The DOJ moved to drop Flynns case on May 7, saying the FBI interview wasnt based on a properly predicated investigation and “seems to have been undertaken only to elicit those very false statements and thereby criminalize Mr. Flynn.”
Sullivan has so far refused to affirm the dismissal and has instead laid out a schedule that would prolong the case for possibly months. Hes appointed former federal Judge John Gleeson as an amicus curiae (friend of the court) “to present arguments in opposition to the governments Motion to Dismiss,” as well as to “address” whether the court should make the defense explain why “Flynn should not be held in criminal contempt for perjury.”
Hes also signaled he may allow more amici to join the case.
Flynns lawyers, led by Powell, on May 19 filed a petition for a writ of mandamus—a request to the higher court to order Sullivan to accept the case dismissal, cancel the Gleeson appointment, and assign the case to another judge.
Wilkinson is arguing that the DOJ motion to dismiss is so unusual, the judge needs more information to evaluate it.
Among her arguments, she said that the motion included no “affidavits or declarations,” was “signed by the Acting U.S. Attorney alone, with no line prosecutors joining,” and didnt address other allegedly false statements of Flynns included in his statement of offense.
Missing from Wilkinsons argument is any mention of the documents the DOJ cited as a reason for dismissing the case.
The documents were revealed by Jeffrey Jensen, U.S. attorney for the Eastern District of Missouri, who was directed in January by Attorney General William Barr to perform a review of the case.
The documents showed the FBI was closing the Flynn investigation on Jan. 4, 2017—nearly three weeks before agents came to interview him.
A number of FBI and DOJ officials involved at the time, all of whom have since left their posts, were interviewed by Congress and the FBI about the Flynn case, but none of them could articulate why exactly was the FBI still investigating Flynn at the time of the interview.
“The Government cannot explain, much less prove to a jury beyond a reasonable doubt, how [Flynns] false statements are material to an investigation,” the DOJ motion to dismiss said.
Wilkinson further focused on the fact that Flynn reiterated his guilty plea multiple times and that Sullivan should be allowed to “conduct investigations as necessary” into whether Flynn should be held in contempt of court for disavowing the plea.
But “a motion to withdraw a guilty plea cannot be grounds for contempt, as the district courts own rules allow it,” said appellate attorney John ReevesRead More From Source