A U.S. appeals court on Friday appeared skeptical of the Justice Department's unprecedented effort to drop a criminal case against President Donald Trump's former adviser Michael Flynn, signaling no quick end to the politically charged prosecution.
U.S. Circuit Judge Karen Henderson, an appointee of President George H.W. Bush, said the lower-court judge overseeing the case was not a "rubber stamp" and there was "nothing wrong" with him at least hearing arguments about whether to let the Justice Department drop the Flynn case.
Flynn twice pleaded guilty to the charge the Justice Department is now trying to drop.
Lawyers for the Justice Department and Flynn appeared before the federal appeals court to argue that U.S. District Judge Emmet Sullivan had trampled on the executive branch's powers by refusing to grant their request to dismiss the case.
Attorney General William Barr ordered the department on May 7 to dismiss the case against Flynn, who was Trump's first national security adviser, following pressure from Trump and his allies, leading to criticism that Barr was using his office to help the president's political allies.
"We are here now today stop further impermissible intrusion into the sole power of the executive branch," said Sidney Powell, a lawyer for Flynn.
"The judge has no authority to do anything further," Powell added.
Powell got skeptical questions from U.S. Circuit Judge Robert Wilkins, an appointee of President Barack Obama. Wilkins suggested that under the court's precedent Sullivan could conduct an "independent evaluation" of whether to drop the Flynn case.
Wilkins added that, if Sullivan refuses to drop the case, Flynn could still lodge further appeals.
Beth Wilkinson, an attorney retained to represent Sullivan, will argue later this morning that Sullivan has a duty to ensure that dismissing the charge is in the public interest.
The unusual nature of the case has drawn national attention, with critics accusing Barr of improperly meddling to benefit Trump.
The livestream of the oral arguments on YouTube on Friday morning showed more than 26,000 users tuning in.
Retired Army Lieutenant General Flynn was one of several former Trump aides charged under former Special Counsel Robert Mueller's investigation that detailed Moscow's interference in the 2016 U.S. presidential election.
Flynn twice pleaded guilty to lying to the FBI about his conversations with Russia's then-ambassador, Sergey Kislyak.
Flynn switched lawyers to pursue a new scorched-earth tactic that accused the FBI of entrapping him, and asked the judge to dismiss the charge.
Sullivan refused to go along and tapped retired Judge John Gleeson to present arguments for why the charge should not be dismissed.
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