Judge Raises Suspicions With Appeals Court About DOJ Motives For Dropping Flynn Charges

Lawyers for a federal judge raised suspicions in a court filing Monday about the motives behind the Department of Justice’s move to drop perjury charges against former national security adviser Michael Flynn.

“It is unusual for a criminal defendant to claim innocence and move to withdraw his guilty plea after repeatedly swearing under oath that he committed the crime, ” noted the brief filed with the U.S. Court of Appeals for the District of Columbia Circuit on behalf of U.S. District Judge Emmet Sullivan, who presided in the Flynn case. It is “unprecedented” for the DOJ to take action to dismiss a case years after two different federal judges accepted the plea, the brief added.

The “unusual developments in this case provide at least a plausible ‘reason to question’ the ‘bona fides’ of the government’s motion,” lawyers argued.

Sullivan should not be required to act as a “mere rubber stamp” for Attorney General William Barr’s  strategy, and should be allowed to rule in the case to protect the “integrity of the judicial process,” the brief warned.

After Sullivan signaled last month that he would not rubber-stamp the DOJ move to drop the charges, Flynn’s attorneys asked the appeals court to order the judge to do so,  and accused Sullivan of “bias.”

The Justice Department joined with Flynn in a separate filing later Monday asking the appeals court to immediately dismiss the case . It argued that the executive branch, not the judiciary, has the “power to decide when — and when not — to prosecute potential crimes” — even though it was the DOJ that initially prosecuted the case against Flynn. Judges don’t have the authority to “stand in the way of a dismissal the defendant does not oppose,” it argued.

The back-and-forth was the latest chapter in the Trump administration’s effort to sanitize Flynn’s actions before he was fired by Donald Trump three years ago for lying to the FBI and Vice President Mike Pence about his secret phone calls with then-Russian Ambassador Sergey Kislyak after Trump was elected.

In transcripts of some of the calls released publicly for the first time last week, Flynn tried to convince Kislyak to keep Russian President Vladimir Putin calm about sanctions imposed by then-President Barack Obama for interfering in the U.S. presidential election. Kislyak agreed and indicated that once Obama was gone, the Kremlin could forge a new relationship with the White House. Flynn didn’t once complain in the calls of the Kremlin’s attempt to sabotage the American election. 

Trump claims that the transcripts reveal nothing concerning and that surveillance of Flynn at the time was a subterfuge for the FBI to launch an illegitimate probe into his administration. Democrats argue that the details of Flynn’s secret talks were a sign of possible collusion between the Kremlin and the incoming administration that justified the investigation.

Sullivan’s attorneys listed a number of concerning omissions in the DOJ’s action demanding the Flynn charges be dropped. 

“It was signed by the Acting U.S. Attorney alone. ... it featured no affidavits or declarations supporting its many new factual allegations; it was not accompanied by a motion to vacate the government’s prior, contrary filings ... it cited minimal legal authority in support of its view,” the filing noted. 

In addition, it failed to mention Flynn’s undisclosed paid work at the time for the Turkish government of Recep Tayyip Erdogan , which was part of his plea agreement, the document noted.