A federal appeals court appeared skeptical Friday of Michael Flynn's bid to force a judge to dismiss his case after the Justice Department sought to abandon the prosecution.
A three-judge panel on the U.S. Court of Appeals for the D.C. Circuit considered Flynn's case after years of twists and turns that began in the first days of President Trump's administration.
Last month, the Justice Department requested to dismiss its 2 1/2 year prosecution of Flynn, who pleaded guilty in 2017 to lying to the FBI about his contacts with the Russian ambassador. The federal district court judge presiding in the criminal case, Emmet Sullivan, has put a hold on that for now.
Instead, he's set up a process to evaluate the government's decision to drop the charges.
Critics have said the Justice Department's intercession in Flynn's case is improper, at least in part, because he is Trump's friend.
Flynn and the Justice Department, meanwhile, have criticized Sullivan for not yet dropping the case. Flynn's legal team took the matter to the appeals court to ask it to order Sullivan to immediately dismiss.
The hearing on Friday lasted more than 90 minutes. Flynn's attorney, Sidney Powell, argued that Sullivan exceeded his authority by appointing an outside counsel to argue against the government and by scheduling a hearing for mid-July to address the department's decision to drop its charges.
Powell said the government has the sole authority to make prosecutorial decisions and that Sullivan has no choice but to toss the case since the Justice Department and Flynn both want it thrown out.
The Justice Department, meanwhile, called Sullivan's review process "intrusive" and said it would cause harm to the government to have to defend its decision publicly in a highly politicized environment.
DOJ attorney Jeffrey Wall said Sullivan's review and the hearing he's scheduled for mid-July would become a "public spectacle."
The Flynn matter is highly political and unusual, not least because Flynn already has admitted his guilt and cooperated with investigators. Attorney General William Barr has said he believes that doesn't matter because of other aspects of the story.
The appeals court judges on Friday appeared skeptical about Powell's argument that they should take the extraordinary step of intervening now and ordering Sullivan both to stop his review and dismiss the case altogether.
Judge Karen Henderson told Powell that a federal judge in a criminal case is "not merely a rubber stamp" when the government seeks to dismiss.
"There's nothing wrong with him holding a hearing, as far as I know," she said.
Judge Robert Wilkins, like Henderson, noted that Sullivan had not yet ruled on the government's motion to dismiss, only set up a process to evaluate it. That's why Sullivan appointed a former judge to advise him and scheduled another hearing.
Sullivan could assess the counsel he's received, conduct his independent review and still decide to drop the case.
"If he denies the motion, then you can come back here on appeal," Wilkins told Flynn's lawyers.
No, Powell said — the government has quit the case and "it's time to leave the field." She also said the impact of the drawn-out nature of this case on Flynn has to be taken into consideration.
"The toll it takes on a defendant to go through this is absolutely enormous," she said.
Latest twist in years-long melodrama
Flynn served as President Trump's first national security adviser for less than a month. He pleaded guilty in 2017 to lying to the FBI about his conversations with Russian's then-ambassador, Sergey Kislyak, during the presidential transition.
Flynn cooperated extensively with special counsel Robert Mueller's investigation into Russian interference in the 2016 election, but did an about-face last summer after bringing on a new legal team led by Powell, who has been a fierce critic on Fox News of the Russia probe.
Early this year, Flynn moved to withdraw his guilty plea, saying he was set up by the FBI. Transcripts of Flynn's phone calls with Kislyak were recently declassified and made public. They showed that the two men did discuss sanctions against Russia—one of the issues Flynn pleaded guilty to lying about.
In its motion to drop the case, the Justice Department argued that the FBI never should have interviewed Flynn, and that any false statements Flynn might have made were not material to a legitimate investigation.
The outside counsel appointed by Sullivan, former federal judge John Gleeson, disagreed. In a sharply worded brief this week, Gleeson said the department's stated reasons for wanting to dismiss the case are "so obviously pretextual, that they are deficient."
He continued: "Moreover, the facts surrounding the filing of the government's motion constitute clear evidence of gross prosecutorial abuse. They reveal an unconvincing effort to disguise as legitimate a decision to dismiss that is based solely on the fact that Flynn is a political ally of President Trump."