By Margot Cleveland
For nearly four hours Tuesday morning, the full D.C. Circuit Court of Appeals drilled attorneys for Michael Flynn, the Department of Justice, and Judge Emmet Sullivan on a wide range of issues, from the scope of Federal Rules of Criminal Procedures 48(a), which provides that “the government may, with leave of court, dismiss an indictment, information, or complaint,” to the constitutional doctrine of separation of powers, the propriety of mandamus, and the need for Sullivan to recuse from the Flynn case.
The en banc hearing followed Sullivan’s request for a rehearing of the 2-1 panel decision that granted Flynn’s petition for mandamus and ordered the longtime federal judge to grant the government’s motion to dismiss with prejudice the charge levied against Trump’s former national security adviser.
A Timeline of Events
Flynn had pleaded guilty in December 2017 to lying to FBI agents Peter Strzok and Joe Pientka during a Jan. 24, 2017, interview in the White House about conversations Flynn had with Russian Ambassador Sergey Kislyak. Flynn later fired his attorneys, hired Sidney Powell, who argued the case today, and moved to withdraw his guilty plea. While that motion remained pending, Attorney General William Barr directed an outside U.S. attorney, Missouri-based Jeff Jensen, to review the Flynn case.
Jensen’s probe uncovered substantial exculpatory evidence withheld from Flynn and his attorneys that established that the FBI agents did not believe Flynn had lied during the interview. Jensen also concluded that the questioning of Flynn was “untethered” from any legitimate investigatory purpose and instead seemed to be a perjury trap set to catch Flynn in a lie. Jensen recommended the DOJ dismiss the charge against Flynn, and Barr agreed.
But when the DOJ moved to dismiss the charge against Flynn, presiding Judge Emmet Sullivan resisted. He appointed a retired judge, John Gleeson, to serve as an amicus curiae, or friend of the court, to argue against dismissal of the Flynn charge. Gleeson, who had co-authored a scathing Washington Post op-ed accusing the DOJ of political favoritism days before his appointment as an amicus curiae, turned in an oversized brief that accused the attorney general and DOJ of misconduct.