Barr's Justice Dept. Battles Flynn Judge Over His Challenge to DC Circuit Ruling

July 20, 2020 at 05:10 PM

5 minute read

The original version of this story was published on National Law Journal

U.S. Department of Justice building in Washington, D.C.

U.S. Justice Department lawyers on Monday urged a federal appeals court to stop any further inquiry into the decision by prosecutors to abandon the case against former Trump national security adviser Michael Flynn, who twice pleaded guilty to lying to the FBI but has since moved to walk away from his plea agreement.

The U.S. Court of Appeals for the D.C. Circuit is weighing whether to erase a three-judge panel decision that said U.S. District Judge Emmet Sullivan has no choice but to dismiss the Flynn case at the request of U.S. Attorney General Willam Barr's Justice Department. Prosecutors now claim the Flynn case never should have been brought in the first place.

Sullivan's lawyers have asked the full court to void the panel decision. They argue the appeals court unfairly cut short Sullivan's plan to review the Flynn case, and they noted that Flynn could appeal, in the normal course, Sullivan's ruling on the government's motion to dismiss the prosecution.

In its filing, the Justice Department defended its decision to drop the Flynn case, and prosecutors doubled down on their arguments that Sullivan has no power to scrutinize the government's motion to dismiss the case. Rather than rubber-stamping the government's request, Sullivan appointed an outside lawyer to make recommendations to the court about how to proceed. That review is on hold, and it will occur only if the full D.C. Circuit takes up the dispute.

"The panel followed established precedent from this court and the Supreme Court to stop an intrusive process that would usurp the core executive power to decide whether to continue a prosecution," Jocelyn Ballantine, an assistant U.S. attorney, wrote in Monday's filing. "[A]ny continuation of the criminal proceedings would transform them into a judicial, rather than executive, prosecution."

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The government's filing was signed by other Trump-era leaders, including Michael Sherwin, the acting U.S. attorney for the District of Columbia; Jeffrey Wall, the acting U.S. solicitor general; and Brian Rabbitt, the acting assistant attorney general in charge of DOJ's criminal division.

Flynn's lawyers, including Sidney Powell and attorneys from the Virginia firm Harvey & Binnall, on Monday also asked the D.C. Circuit not to revisit the panel decision. "The district court has hijacked and extended a criminal prosecution for almost three months for its own purposes," Powell and Jesse Binnall wrote in Monday's filing.

In May, Flynn contested Sullivan's refusal to immediately dismiss the prosecution and received the backing of the Justice Department in the D.C. Circuit. Sullivan hired the prominent Washington trial attorney Beth Wilkinson, who represented Justice Brett Kavanaugh in connection with his heated confirmation, to represent him in the appeals court.

A divided D.C. Circuit panel ordered Sullivan last month to grant the Justice Department's retreat from the case, rebuffing his plan to review the unusual handling of the high-profile prosecution.

"This is plainly not the rare case where further judicial inquiry is warranted," wrote Judge Neomi Rao, the latest Trump appointee to the D.C. Circuit.

Rao added that Sullivan's plan to scrutinize DOJ "will result in specific harms to the exercise of the Executive Branch's exclusive prosecutorial power."

Writing in dissent, D.C. Circuit Judge Robert Wilkins wrote: "It is a great irony that, in finding the District Court to have exceeded its jurisdiction, this Court so grievously oversteps its own."

"This appears to be the first time that we have issued a writ of mandamus to compel a district court to rule in a particular manner on a motion without first giving the lower court a reasonable opportunity to issue its own ruling," Wilkins said. The judge also wrote: "This is no mere about-face; it is more akin to turning around an aircraft carrier."

Rather than cede to the panel ruling, Sullivan has put up an unusual fight, imploring a rare en banc sitting of the D.C. Circuit to erase the panel's split decision and review Flynn's appeal anew.

"The panel's decision threatens to turn ordinary judicial process upside down. It is the district court's job to consider and rule on pending motions, even ones that seem straightforward," Wilkinson wrote.

She added that the D.C. Circuit, "if called upon, reviews those decisions—it does not preempt them."

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