Sidney Powell, the attorney for former National Security Advisor Lt. Gen. Michael Flynn (Ret.), told the U.S. Court of Appeals for the D.C. Circuit Tuesday that Judge Emmet G. Sullivan lost his “neutrality” and should be dismissed from the case.
Powell was arguing in an en banc hearing of the whole D.C. Circuit after Judge Sullivan appealed a 2-1 decision of the appellate court in June granting a writ of mandamus ordering him to dismiss the criminal charges against Flynn.
Originally, Flynn had pleaded guilty in December 2017 to charges of lying to the Federal Bureau of Investigation (FBI). But new evidence began to emerge that Flynn had been set up, and forced into a plea bargain by rogue prosecutors.
Flynn dropped his former legal team and hired Powell, who was convinced that the FBI had committed misconduct. After Attorney General William Barr brought in U.S. Attorney Jeffrey Jensen to review the prosecution, the FBI was compelled to turn over exculpatory evidence that it had previously withheld. The most important evidence showed that the FBI had plotted against Flynn in late January 2017, even though FBI agents had previously concluded he had done nothing wrong.
In may, the Department of Justice (DOJ) filed a motion to drop the charges. But Judge Sullivan — who had earlier accused Flynn of treason, and had to apologize — refused to let the matter go, and invited amicus briefs to be filed to argue that Flynn had committed criminal contempt of court. He also appointed retired judge John Gleeson to make arguments before the court, even though Gleeson previously claimed in the Washington Post that Flynn benefited from political influence.
Powell applied to the D.C. Circuit for a writ of mandamus, which was granted, largely on the grounds that Sullivan was violating the constitutional separation of powers by usurping the prosecutorial discretion of the executive branch. The one part of the petition that was not granted was Flynn’s request, via Powell, to have Sullivan removed from the case.
On Tuesday, Powell argued again the the DOJ’s request to drop the case should be honored. Flynn’s “entire liberty and life,” she said, had been placed at risk over charges that “should never have been brought against him.” Simply by refusing to drop the case, she said, Judge Sullivan had shown that he had a bias against Flynn, and had become an interested party in the case.
A judge, she said, should be a “neutral arbiter of law.” Sullivan “lost that neutrality,” she said.
There were some interesting moments in the proceedings. At one point, the conference call software hung up on the court:
As if the Flynn Dismissal Rehearing wasn't enough of a circus, this just happened… pic.twitter.com/gGhr1ZJhlu
— TheSharpEdge (@TheSharpEdge1) August 11, 2020
In addition, Acting Solicitor General Jeffrey Wall suggested that the DOJ might also have sought to drop charges against Flynn because of information that the DOJ had from other investigations — an allusion to U.S. Attorney John Durham’s ongoing investigation into possible criminal conduct in the investigation of “Russia collusion” with the Trump campaign.
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, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.