WASHINGTON — A federal appeals court heard arguments Friday on whether it should order the dismissal of the Justice Department’s prosecution of former Trump national security adviser Michael Flynn, wading into a politically charged legal question and a power struggle between two branches of government.
Lawyers for Flynn are asking the Washington-based appeals court to force a federal judge to grant the Justice Department’s request and dismiss the case. They say there is no role for the judge to play now that prosecutors have abandoned their pursuit of Flynn, who pleaded guilty as part of special counsel Robert Mueller’s Russia probe to lying to the FBI.
“The government has quit, and it’s time to leave the field,” Flynn attorney Sidney Powell told the three-judge panel, calling the case a “travesty of justice.”
The Justice Department moved to dismiss the case against Flynn last month, saying that the FBI had insufficient grounds to interview Flynn about contacts he had during the presidential transition period with the Russian ambassador.
But U.S. District Judge Emmet Sullivan refused to immediately grant the request, scheduling a hearing for next month and appointing a retired federal judge to argue against the Justice Department’s position. That ex-judge, John Gleeson, said in a filing this week that the department’s move to dismiss the case amounted to an abuse of power.
The court appeared skeptical of Powell’s arguments, asking her why Sullivan was not empowered to conduct an independent evaluation of the department’s position or to hold a hearing before deciding whether to grant the request to dismiss.
“There’s nothing wrong with him holding a hearing as far as I know. I don’t know of any authority that says he can’t hold a hearing before he takes action,” said Judge Karen Henderson, an appointee of former President George H.W. Bush.
The focus Friday was not on the merits of the Justice Department’s position but rather on whether Flynn’s attorneys could bypass Sullivan and go straight to the appeals court to order him to dismiss the case.
“It cannot go on any longer,” Powell said. “The judge has no authority to do anything further in this case.”
Lawyers for the Justice Department and Sullivan were also making arguments Friday.
President Donald Trump has relentlessly railed against the special counsel’s inquiry into his 2016 campaign’s contacts with Russia and emphatically welcomed the Justice Department’s decision to drop the Flynn case.
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