Michael Flynn’s legal team Monday accused the federal judge overseeing his criminal case of hijacking it for political purposes and asked a federal appeals court to deny his bid to keep the Justice Department’s prosecution alive.
“The district court has hijacked and extended a criminal prosecution for almost three months for its own purposes,” Flynn’s attorneys wrote in a filing with the D.C. Circuit Court of Appeals.
Therefore, he can’t ask a full slate of judges on the appellate court to review a decision by a three-judge panel on the same court to dismiss the prosecution.
“To allow Judge Sullivan to delay and generate litigation against a criminal defendant is unconstitutional,” wrote Flynn attorney Sidney Powell. “This action itself diminishes the status of the federal judiciary as an independent bulwark for the rule of law.”
Judge Sullivan has resisted calls to dismiss the Flynn case even as the Justice Department sought to abandon the prosecution. Flynn had pleaded guilty twice to lying to the FBI about his conversations with Russia’s then-ambassador just before the Trump administration took over.
The Justice Department in a surprise move earlier this year said the FBI never should have been interviewing Flynn in the first place and his statements were not material to the bureau’s Russia investigation.
Judge Sullivan still delayed terminating the case. But a three-judge Court of Appeals panel last month said he must dismiss the case because he didn’t have the authority to question the Justice Department’s decision.
He filed an appeal last week asking the full court to review the appellate court’s ruling. In his filing, he claimed the court’s decision threatened “to turn the ordinary judicial process upside down.”
Even if the court rejects Ms. Powell’s claim that Judge Sullivan lacks standing, the D.C. Circuit could still take up his case. Under judicial rules, any active D.C. federal judge can request a review by the full court, even if neither party has asked or has standing to do so.
A majority of judges must agree to rehear the case. But even if the appellate court refuses to do so, any judge who disagrees with that refusal still could write a dissent for public consumption.
The D.C. Circuit is currently composed of seven judges appointed by three Democrats and four Republican appointees.
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