In new filing, Flynn's lawyers say judge 'exceeded his power' in not dismissing case

The judge 'has no authority to gin up his own case or controversy where none exists.'

Published: June 11, 2020 5:27pm

Updated: June 12, 2020 9:30am

Lawyers for Michael Flynn argued in a brief filed Thursday that Judge Emmet Sullivan "exceeded his power" when he refused to dismiss a case per a Justice Department request, arguing that the judge is legally compelled to follow federal prosecutors' desire to end prosecution against the former Trump national security adviser.

The Justice Department in a surprise move last month announced it would be dismissing its case against Flynn, who had plead guilty to lying to FBI agents but later withdrew the plea.

Federal officials in May claimed the FBI interview with Flynn had been immaterial to its investigation of him, as part of the federal Russia collusion probe, and that his statements in the 2017 meeting were thus legally irrelevant. 

But Sullivan, who is overseeing Flynn's case, refused to accept the Justice Department request, instead calling in ex-Judge John Gleeson to file an an opinion arguing in favor of keeping the case against Flynn. 

In their Thursday filing, Flynn's lawyers slammed Sullivan, arguing that he is "not in the Executive branch and, being an Article III judge, has no authority to gin up his own case or controversy where none exists."

"The game is over and this Court should order the umpire to leave the field," they wrote of the case, arguing that the ultimate authority for dismissing charges lies with prosecutors. 

Gleeson in his filing earlier this week argued that the court should consider Flynn's withdrawal of his guilty plea to itself be perjury, and that Sullivan "should take Flynn’s perjury into account in sentencing him on the offense to which he has already admitted guilt."

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