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DOJ urges appeals court to force dismissal of Flynn case

Kyle Cheney and Josh Gerstein

The Justice Department on Monday urged a federal appeals court to force a lower-court judge to dismiss the prosecution of President Donald Trump's former national security adviser Michael Flynn.

District Court Judge Emmet Sullivan had declined to immediately toss the case against Flynn, despite the Justice Department's move to drop a charge that the Trump ally lied to the FBI about his 2016 contacts with Russia's ambassador to the United States. Flynn pleaded guilty to the offense in 2017 but reversed course and moved to withdraw his plea in recent months.

Sullivan instead sought outside input about whether he should abandon the case — and potentially charge Flynn with contempt of court for perjury during his guilty plea proceedings. On Monday, DOJ said Sullivan was wrong to take that step.

“Instead of inviting further proceedings, the court should have granted the government’s motion to dismiss,” top DOJ officials, including at least three career prosecutors, wrote in a 45-page filing to a three-judge appeals court panel.

The DOJ lawyers unveiled a muscular argument in favor of virtually unbridled executive branch discretion in criminal charging decisions. They argued that Sullivan had no business standing in the way of a dismissal favored by both the government and a defendant.

The Justice Department’s new filing represented a major coup for Flynn’s defense. Indeed, in one respect the government went even further than the retired general’s attorneys did: It essentially asked the appeals court to foreclose Sullivan or any other judge from launching contempt proceedings against Flynn over seemingly contradictory statements he made under oath when affirming his plea and later withdrawing it.

“Nor, under the circumstances of this case, may the district court assume the role of prosecutor and initiate criminal charges of its own,” the Justice Department added, declaring unambiguously that Sullivan has “no authority” to move forward with a contempt proceeding, as he suggested he might.

In a filing earlier Monday, lawyers representing Sullivan — appointed to the bench most recently by Bill Clinton— defended his handling of the Justice Department’s motion in part by noting a highly-unusual aspect of the government’s filing last month: both the career prosecutors handling the case declined to sign the motion. It was submitted with one sole signature, that of the acting U.S. Attorney installed in his post by Attorney General William Barr.

That situation appeared to be ameliorated a bit for the government in Monday’s filing: it bore the signature of one of the longtime assistant U.S. attorneys on the case, Jocelyn Ballantine, as well as two other career prosecutors. (The acting U.S. Attorney who signed the original motion to drop the case, Timothy Shea, vacated that position last month and moved into another acting role heading up the Drug Enforcement Administration.)

The Justice Department’s abrupt move to dismiss the case against Flynn was so “unusual” that it calls into question the department’s motives and warrants deeper review, Sullivan argued earlier on Monday in an extraordinary filing of his own with the federal appeals court.

“For now, it suffices to say that the unusual developments in this case provide at least a plausible ‘reason to question’ the ‘bona fides’ of the government’s motion,” Sullivan argued in the 46-page filing, submitted by Beth Wilkinson and colleagues from D.C. law firm Wilkinson Walsh.

The Justice Department moved to drop the case against Flynn last month, citing disputed evidence that the FBI manufactured a reason to interview the then national security adviser for his December 2016 contacts with Russia’s ambassador to the United States. But rather than rubber-stamp the reversal, Sullivan called for a deeper review, appointing a former judge to argue against dismissal and to look at whether Flynn should be charged with contempt for his handling of the matter.

Sullivan’s brief filed Monday was the first and clearest window into his reasoning for rejecting the calls by Flynn and his allies to dismiss the case, even with Attorney General Bill Barr’s DOJ moving to drop it. DOJ, Sullivan noted, repeatedly affirmed for years that the evidence Flynn lied to the FBI was ironclad and crucial to the FBI’s investigation of Russian interference in the 2016 election. Its reversal, he said, regardless of the details provided in it, raises troubling questions.

“It was signed by the Acting U.S. Attorney alone, with no line prosecutors joining; it featured no affidavits or declarations supporting its many new factual allegations; it was not accompanied by a motion to vacate the government’s prior, contrary filings and representations; it cited minimal legal authority in support of its view on materiality,” Sullivan’s brief noted, adding that it also omitted any mention of other potentially criminal conduct Flynn had admitted to in his plea: working on behalf of the Turkish government without registering as a foreign agent.

"It is unprecedented for an Acting U.S. Attorney to contradict the solemn representations that career prosecutors made time and again, and undermine the district court’s legal and factual findings, in moving on his own to dismiss the charge years after two different federal judges accepted the defendant’s plea," Sullivan's legal team wrote, adding, “As this Court’s precedents envision, Judge Sullivan can—and arguably must—consider those issues before granting a motion to dismiss."

Sullivan’s brief followed an effort by Flynn to force him to grant DOJ’s motion to dismiss the case. Flynn's lawyer filed for a “writ of mandamus,” seeking a rarely granted order from the appeals court requiring a lower-court judge— Sullivan, in this case — to act.

But Sullivan emphasized that he hadn’t even finished his review of the matter before Flynn sought to have the appeals court usurp his control. The appeals court, Sullivan argued, exists to review lower-court decisions, so he should be permitted to complete his review, render a judgment and then — if DOJ and Flynn still oppose his decision — send the matter to the higher court for consideration.

“If Judge Sullivan’s decision is anything short of what the parties sought, this Court will have an opportunity to review it, without writing on a blank slate,” Sullivan’s attorneys wrote.

That the Justice Department would support its own motion to dismiss the case was unremarkable. However, its decision to endorse Flynn’s bid to have the appeals court effectively shut down the case before Sullivan has ruled is likely to provoke criticism from Justice Department veterans.

DOJ’s position in the Flynn case goes against the government’s tendency, for institutional reasons, to disfavor motions for mandamus because they disrupt the normal flow of district court litigation. Routinely allowing such motions could cause chaos in the trial courts by subjecting every judicial decision to immediate appeal.

"What you would have is just complete disarray in the legal system if every time someone disagreed with a court ruling, there was mandamus. Courts hate it and the government hates it, because the government would be dragged into case after case like this," said Stuart Gerson, who headed DOJ's Civil Division under President George H.W. Bush and helped write an amicus brief defending Sullivan.

In an interview, Gerson said the Justice Department’s call for the appeals court to step in was exceptional and striking because all Sullivan had done thus far regarding the government's motion was appoint Gleeson as a friend of the court and set a schedule for briefs and a hearing on the issue.

"The linchpin fact of the whole thing is [Sullivan] hasn't done anything yet," Gerson said in an interview. "He's ruled on nothing, as we speak."

The filing by prosecutors is light on explanation for why the appeals court needs to step in at this juncture, before Sullivan has even ruled on the government’s motion. However, DOJ suggests the process the judge plans to pursue, involving a court-appointed friend-of-the-court and accepting briefs from other outside groups and individuals, threatens to create a legal free-for-all over a decision that is entirely up to the executive branch.

“The threat of intrusive judicial proceedings and criminal charges—and potentially even evidentiary proceedings if the court-appointed amicus has his way—only makes the separation-of-powers problem worse,” the Justice Department argues.

The three-judge D.C. Circuit panel considering the Flynn appeal is more conservative than a typical for that court. The panel includes Judge Neomi Rao, a conservative firebrand who was nominated by Trump and is the court’s newest member. The other two judges are Karen LeCraft Henderson, a more traditional conservative appointed by President George H.W. Bush, and Robert Wilkins, a liberal appointed by President Barack Obama.

If Sullivan or Flynn are dissatisfied with the panel’s ruling, they could ask the full bench of the D.C. Circuit to take up the issue. A petition to the Supreme Court is also possible. Solicitor General Noel Francisco, who handles critical arguments at that court, is among those listed as signing off on the Justice Department brief filed Monday.

The latest twists in Flynn’s years-long legal drama come at a sensitive moment of national reckoning with systemic inequities in the criminal justice system, brought on by the killing of George Floyd, an African American man, by Minneapolis police. Trump has rallied supporters to rip the FBI over its handling of the Flynn matter and fundraised off it as well, but he hasn’t moved to pardon Flynn, which would short-circuit the legal process, despite calls from some allies to do so.

Since abandoning his guilty plea, Flynn has maintained that he was the victim of FBI misconduct and coerced into admitting to a crime.

The charges against him stemmed from the FBI’s 2016 counterintelligence operation into several Trump campaign aides. Flynn was eyed for his visit to Moscow in 2015, part of a Russian-funded dinner at which he was seated next to President Vladimir Putin.

By early 2017, after Trump had designated him as his national security adviser, the FBI was prepared to close its case against Flynn, according to documents disclosed as part of Flynn’s proceedings before Sullivan. That changed when top FBI brass learned of Flynn’s December 2016 calls with Kislyak, which came just as the outgoing Obama administration imposed sanctions on Russian officials for their interference in the election.

Leaked details of the calls suggested that Flynn urged the Russian government not to retaliate against the Obama sanctions, avoiding a tit-for-tat ahead of the inauguration of Trump, who had promised warmer relations with Russia. But Flynn denied that he discussed sanctions with Kislyak at all.

The existence of the calls set off a debate between the Obama Justice Department — which wanted to inform the incoming Trump administration about the calls — and the FBI, which wanted to keep them secret during its counterintelligence investigation. The debate reached a fever pitch when incoming vice president Mike Pence repeated Flynn’s incorrect statement during a TV interview, and flared again after the inauguration, when Press Secretary Sean Spicer reiterated them.

The Justice Department ultimately informed the White House about the calls, but not before the FBI sent two agents to interview Flynn in the West Wing, where he continued to deny discussing sanctions with Kislyak.

During that interview, Flynn downplayed the extent to which the discussion of sanctions and other penalties against Russia for interfering in the election were discussed. But transcripts released last week showed they played a more central role in Flynn’s talks with Kislyak than previously understood.

Flynn pleaded guilty in December 2017 to lying about his contacts with Kislyak. He also admitted to doing paid lobbying for Turkey’s government without registering and to lying about efforts to delay a U.N. vote on Israeli settlements in the weeks before Trump took office.