A U.S. government lawyer defending the Justice Department’s decision to drop its criminal case against Army Lt. Gen. (Ret.) Michael Flynn heavily suggested during a hearing on Tuesday that Attorney General William Barr relied on information not yet disclosed to the public in making the decision.
Acting U.S. Solicitor General Jeffrey Wall mentioned to Judge Merrick Garland that Barr’s decision to drop Flynn’s case came “in the context of non-public information from other investigations.”
The “other investigations” could be a reference to the investigation run by U.S. Attorney John Durham, who Barr appointed to examine the FBI’s handling of its investigation into Flynn. It could also include another investigation, run by U.S. Attorney Jeff Jensen, looking into the repeated unmasking of Flynn.
Wall twice emphasized the existence of non-public information that Barr relied on for his decision:
I just wanted to make clear that it may be possible that the attorney general had before him information that he was not able to share with the court and so what we put before the court were the reasons that we could, but it may not be the whole picture available to the executive branch.
…We gave three reasons. One of them was that the interests of justice were no longer served in the attorney general’s judgment by the prosecution. The attorney general made that decision or that judgment on the basis of lots of information. Some of it is public and fleshed out in the motion and some of it is not.
Wall and Flynn’s attorney Sidney Powell argued to a 10-judge appeals court panel that U.S. District Court Judge Emmet Sullivan should dismiss the case against Flynn following the DOJ’s decision to drop its charges against the former Trump national security adviser.
After Barr decided to drop charges against Flynn in May, Sullivan unexpectedly appointed a former judge to argue why the case should not be dropped.
Flynn’s lawyers successfully requested a three-judge appeals court to force Sullivan to dismiss the case, but Sullivan then successfully appealed to have a full appeals court re-hear that argument.
Powell argued that Sullivan has dropped “any semblance of the unbiased impartial adjudicator.”
She also argued that Flynn has suffered enough, for four years has been falsely accused of being a traitor, and has lost millions of dollars trying to defend himself.
Special Counsel Robert Mueller had charged Flynn with lying to federal investigators about phone conversations he had with a Russian ambassador during the transition period.
Since then, declassified documents have shown that senior FBI officials found no problems with the phone calls but discussed interviewing him to either get him to admit to a violation of the obscure Logan Act, or lie about the alleged violation and be fired.
In addition, FBI notes after the interview indicated that Flynn did not lie to them. However, Flynn pleaded guilty under pressure from prosecutors who reportedly agreed not to go after his son. Flynn has since asked to withdraw that guilty plea.
If the appeals court agrees to allow Sullivan to decide whether he will dismiss the case, it is not yet clear what he will do. President Trump has not ruled out pardoning Flynn.
Trump last month commuted a sentence for longtime ally Roger Stone, who was sentenced to jail for lying to Congress and witness tampering, as part of Congress’s investigation into Russia collusion.