The federal judge who refused to accept a Justice Department motion to drop the case against former National Security Advisor Michael Flynn will have to explain himself this week.
A D.C. Circuit Court of Appeals panel this week will hear oral arguments over Flynn’s legal gambit of trying to force U.S. District Court Judge Emmet Sullivan to dismiss the case, according to Fox News.
The Justice Department last month announced that it would drop charges against Flynn, setting the stage for what Flynn’s legal team expected would be a formal action to dismiss the case.
However, Sullivan has appointed retired federal judge John Gleeson to oppose the plan to dismiss the charges.
Gleeson has also been charged with considering if Flynn could be held in criminal contempt for perjury, according to The Associated Press.
In an Op-Ed in The Washington Post, Gleeson showed where his arguments may be heading.
“Flynn’s guilt has already been adjudicated. So if the court finds dismissal would result in a miscarriage of justice, it can deny the motion, refuse to permit withdrawal of the guilty plea and proceed to sentencing,” he and co-authors David O’Neil and Marshall Miller wrote.
Sullivan’s team also said the judge should be making the decision about dropping the charges.
“The question before this Court is whether it should short-circuit this process, forbid even a limited inquiry into the government’s motion, and order that motion granted,” Sullivan’s legal team wrote in a filing, according to the AP. “The answer is no.”
Flynn’s legal team then requested what is known as a writ of mandamus that would force Sullivan to accept the Justice Department’s decision.
Sullivan has said that the proposed writ of mandamus is not necessary because he has not yet decided on the case, and could still rule in favor of dismissing it.
Sullivan has made it clear he opposes the decision to drop the charges.
“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,” Sullivan argued in a court filing.
Flynn had pleaded guilty to lying to the FBI, then withdrew the plea and fought the charges, leading to the Justice Department’s reversal.
Flynn’s attorney, Sidney Powell, has said it is time to end the case, The Washington Post reported.
“This travesty of justice has already consumed three or more years of an innocent man’s life — and that of his entire family,” Powell wrote. “No further delay should be tolerated or any further expense caused to him and his defense.”
In a court brief, the Justice Department said Sullivan has no authority “to stand in the way of a dismissal the defendant does not oppose,” according to the AP.
“Far from authorizing further proceedings at the district court’s behest, the Constitution requires the court to honor the Executive’s unopposed decision to drop the pending charges, and precludes the case from proceeding to sentencing in the absence of a live controversy,” the DOJ wrote in calling for the case to be dropped.
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