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Lawyer for Flynn judge says 'no reason' to think the court won't eventually dismiss the case

The Justice Department has requested the case be dismissed

Updated: June 12, 2020 - 12:26pm

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A lawyer representing the judge overseeing the Michael Flynn trial suggested Friday that the court will eventually dismiss the case against the former Trump national security adviser, arguing that the judge's decision to call in outside opinions on the matter was merely an issue of seeking advice before the probable dismissal. 

The lawyer, Beth Wilkinson, made the acknowledgement during a roughly two-hour federal appeals court hearing on whether the court should order a lower court to immediately dismiss the case, as was requested last month by the Justice Department, or allow the case to proceed through at least July. 

"There's no reason at this point to fear that the District Court is going to deny the government's motion to dismiss," she told the three-judge panel Friday morning, stating that the lower court is simply "getting advice" from third parties before likely doing so. 

It was unclear at the end of hearing, at about noon, when the panel of judges—Neomi Rao, Robert Wilkins and Karen Henderson—would make a decision. A ruling could come before the weekend but is expected to likely happen no sooner than Monday.

The Justice Department last month moved to dismiss its case against Flynn, who pled guilty to lying to the FBI in a 2017 White House interview pursuant to the Trump-Russia investigation. Flynn withdrew the plea earlier this year.

The department signaled its intent to dismiss the case following the release of declassified documents that suggest the federal government had made missteps in its investigation, including its handling of the 2017 interview. 

However, presiding federal Judge Emmet Sullivan declined to immediately dismiss it, instead calling in several amici curiae to present arguments in favor of continuing the prosecution of Flynn. 

Sullivan was subsequently ordered by the D.C. Circuit Court of Appeals to explain his reasoning for not dismissing the case, after which he hired Wilkinson to represent him. 

Government, lawyers urge court to drop case immediately

Principal Deputy Solicitor General of the United States Jeff Wall argued Friday in the virtual hearing that the federal government has gone "beyond what we thought we were obligated to do" in explaining its reasoning behind its dismissal request, and that Sullivan should honor that decision and drop the case rather than draw it out.  

"There's no reason not to take that final step. This has already become, and I think is only becoming more of, a public spectacle," he said, arguing that the appeals court should force the lower court to end the trial.

Sidney Powell, one of Flynn's attorneys, made similar arguments, saying the Justice Department provided an "extensive and thoroughly documented" argument in favor of dropping the case and that Sullivan should obey the request and bring the prosecution to an immediate end.

The trial "cannot go on any longer," Powell argued, claiming that the judge overseeing the case "has no authority" to continue it after the executive branch requested it be dropped. 

Failing to bring the trial to an end immediately, Powell said, would simply be "delaying the inevitable," arguing that Sullivan will eventually be found to have exceeded his authority in this case. 

Yet the court at times appeared reluctant to quickly dismiss the case. Henderson pointed out that Sullivan has scheduled a hearing for July on the matter instead of electing to keep the trial "waiting and languishing."

"There’s nothing wrong with him holding a hearing; there’s no authority I know of that says he can’t hold a hearing," she said. 

Ex-Judge John Gleeson, called in by Sullivan to argue in favor of continuing the trial, this week said in a filing that Flynn should be sentenced under the crime to which he originally plead guilty and that the court should also factor into its sentencing Flynn's withdrawal of that guilty plea, which Gleeson claimed constituted perjury. 

But the Justice Department has argued that the FBI interview of Flynn, a retired Army lieutenant general, was not germane to its investigation, so anything he said in that interview was legally immaterial. 

On Thursday, Flynn's lawyers argued in a filing that Sullivan had "exceeded his power" in not dropping the case after the Justice Department request. 

The judge has "no authority to gin up his own case or controversy where none exists," they argued. 

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