WASHINGTON – A federal appeals court panel has ordered a trial judge to explain why he is hesitating to grant the Justice Department’s request that he dismiss the criminal case against former National Security Adviser Michael Flynn.
The order came as FBI Director Christopher Wray announced Friday that the bureau would conduct an internal review of the investigation into Flynn, including to “determine whether any current employees engaged in misconduct.”
The moves were the latest twists in a bizarre legal and political drama that has enveloped the prosecution of Flynn, who twice pleaded guilty to lying to FBI agents in the Russia investigation about his conversations in December 2016 with the Russian ambassador to the U.S.
“Everything about this case is unusual,” said Stanford law Prof. David Sklansky. “It’s unusual to ask a higher court to direct a lower court to do something before the lower court has had a chance to make up its own mind in the first instance — and that includes whether to dismiss a case.”
Flynn’s case has become a political cause for President Donald Trump and his supporters. This month, at Attorney General William Barr’s direction, the Justice Department asked the federal judge overseeing the case, Emmet Sullivan, to drop the matter, using as justification a disputed legal theory that Flynn’s false statements were immaterial to any legitimate investigation.
Barr had earlier intervened to seek a more lenient sentence for another Trump associate prosecuted in connection with the Russia investigation, Roger Stone, than prosecutors had sought. In both cases, Barr’s moves prompted accusations that he was politicizing the department by showing special favor to presidential favorites.
Sullivan responded to the abrupt reversal in the Flynn case by appointing retired federal Judge John Gleeson to argue against the Justice Department’s new position. He also asked Gleeson to evaluate whether Flynn committed criminal contempt, apparently because Flynn has made contradictory factual statements under oath by admitting he knowingly lied and then saying he did not lie.
On Tuesday, Flynn defense lawyer Sidney Powell filed a petition with the appeals court seeking an order that would short-circuit Sullivan’s review. She argued that the judge was legally required to drop a case if that was what the Justice Department decided to do.
Barr has made clear that he considers to be illegitimate the government’s counterintelligence effort to understand the scope of Russian election interference in 2016 and any links to the Trump campaign. He has commissioned John Durham, the U.S. attorney in Connecticut, to re-examine that investigation; and in January, he assigned another prosecutor, Jeff Jensen, the U.S. attorney in St. Louis, to go over the Flynn files.
After Jensen’s review, the department disclosed to Powell documents she has used to portray her client as a victim. Many experts in criminal law have disputed the notion that he was treated differently in any legally meaningful sense than countless other people under investigation who lack presidential ties and receive no special lenity.