Judge Emmet G. Sullivan is fighting an order from a higher court to dismiss the prosecution of former National Security Adviser Michael Flynn, filing a petition Thursday to ask the full appellate court to hear the case.
Last month, the U.S. Circuit Court of Appeals for the District of Columbia issued a 2-1 ruling granting a writ of mandamus to Flynn, ordering Sullivan to grant the Department of Justice’s motion to withdraw its criminal case against him.
However on Thursday, Sullivan filed to have the D.C. Circuit rehear the case en banc, as Politico reported:
Lawyers for U.S. District Court Judge Emmet Sullivan filed a petition Thursday asking the full bench of the D.C. Circuit Court of Appeals to review a 2-1 decision a panel of that court issued last month, directing Sullivan to dispense with his plans for a hearing and instead grant the government’s request to drop the case.
Sullivan’s petition says the steps he was taking are commonplace and denounces the appeals court’s earlier decision to intercede as “a dramatic break from precedent that threatens the orderly administration of justice.”
In the filing, Sullvian’s lawyers call the earlier judgment “a dramatic break from precedent that threatens the orderly administration of justice.”
Flynn pleaded guilty (once) in December 2017 to lying to the FBI, under pressure from prosecutors, though FBI agents did not think he had actually lied. New exculpatory evidence emerged to show that FBI agents actually sought to drop their investigation of Flynn because he had done nothing wrong, but senior leadership in the agency directed that the investigation be continued.
President Barack Obama and Vice President Joe Biden were allegedly present when plans to continue investigating Flynn were discussed, with Biden reportedly mentioning the Logan Act.
The Logan Act is an eighteenth-century law preventing private citizens from engaging in diplomacy. It has never been prosecuted successfully.
When evidence began to emerge of political bias in the FBI’s investigation of Russia “collusion,” Judge Sullivan asked Flynn if he wished to withdraw his guilty plea, which he declined to do. Sullivan then accused Flynn of treason, based on a misunderstanding of the accusations against the retired lieutenant general, and later apologized.
Flynn did withdraw his guilty plea later, and Attorney General William Barr brought in an outside investigator, U.S. Attorney Jeff Jensen, to review the prosecution.
That review produced the new evidence, including FBI notes that suggested Flynn had been targeted for political reasons.
The Department of Justice announced in May that it wanted to drop charges. But Judge Sullivan refused to let the case go, and invited amicus curiae (“friend of the court”) briefs to argue that Flynn should be charged with criminal contempt for lying in his initial guilty plea.
Sullivan specifically invited retired Judge John Gleeson to submit arguments. Gleeson had already expressed his view publicly that there may have been political interference from the Trump administration in the Flynn prosecution.
Flynn’s attorney, Sidney Powell, approached the D.C. Circuit for a writ of mandamus to force Sullivan to allow the Department of Justice to withdraw the case. The appeals court agreed, ruling that Sullivan’s attempt to keep the prosecution going violated the separation of powers, and that Gleeson’s inquiry risked being an open-ended inquisition.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). His new book, RED NOVEMBER, is available for pre-order. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.