The never-ending saga involving former National Security Adviser Michael Flynn has taken yet another turn.
Last month, the United States Court of Appeals for District of Columbia Circuit ordered Judge Sullivan, who’s overseeing Flynn’s case, to respond to an appeal that Flynn’s legal team had filed.
Flynn’s team appealed to have Sullivan replaced and have the case dismissed by June 1.
Rather than drop the case, Sullivan also designated John Gleeson, a former judge appointed by President Bill Clinton, to review the case and present an argument as to why the charges should not be dropped against Flynn, CBS News reported.
Now, there’s another twist.
Sidney Powell, a former federal prosecutor who is now representing Flynn, filed a 26-page brief with the appeals court on Wednesday, arguing that Sullivan “has exceeded his power now precisely because General Flynn proclaimed his innocence and pursued a vigorous defense of his constitutional rights as soon as he retained unconflicted counsel.”
In a reference to Sullivan’s 2018 suggestion that Flynn had committed treason, which the judge walked back with an apology, Powell argued the judge’s “proclivity for grabbing world-wide headlines by suggesting General Flynn has committed heinous crimes that don’t exist is once again on display.”
“Article II, Section 3 of the Constitution vests the power to execute the laws solely in the Executive Branch,” Powell argued. “Accordingly, the power to prosecute — to decide who, when, where, and how someone is charged with a federal crime — rests entirely with the Department of Justice.”
Powell said the appeal’s court’s “intervention is needed now — not after Respondent and his Amicus create a circus and sentence an innocent man,” the Washington Examiner reported.
“This Court must stop him before he further jeopardizes the legitimacy of the federal judiciary,” Powell said of Sullivan. “Accordingly, mandamus should issue to dismiss this case with prejudice, vacate the plea, and order any further proceedings conducted by a different judge.”
Sullivan filed his own 41-page brief through attorney Beth Wilkinson, insisting that “despite the assumptions underlying Mr. Flynn’s and the government’s briefs, Judge Sullivan has not decided to deny the motion to dismiss or to proceed with a contempt inquiry” and “all he has decided is that there may be something to decide.”
The judge contended that “it is consistent with the separation of powers to allow district courts presented with motions to dismiss to assess the contours of their authority and review the facts, particularly where granting the motion would entail dissolving multiple court orders, including a conviction.”
And Sullivan’s lawyer argued that “the steps he has taken so far … are quintessential Article III functions that courts rely on to decide pending motions.”
Earlier Wednesday, Gleeson argued in district court that the Justice Department is engaged in “a gross abuse of prosecutorial power.”
Last month, the Department of Justice filed a motion to dismiss its criminal case against Flynn following recently presented documents.
In the newly released documents, we learned that the FBI had drawn up paperwork to close the case against Flynn, but fired agent Peter Strzok made a last-minute move to keep it open.
Handwritten notes from the FBI — which were withheld from Flynn’s defense team for years — show that a key goal of the agents investigating Flynn was “to get him to lie so we can prosecute him or get him fired.”
House Intelligence Committee ranking Republican Rep. Devin Nunes also revealed over the weekend that the FBI’s original interview summary with Flynn is “missing.”