Former national security adviser Michael Flynn’s legal team asked an appeals court to put an end to an ongoing battle over whether a lower-court judge must dismiss the criminal case against him, Politico reports.
"The district court has hijacked and extended a criminal prosecution for almost three months for its own purposes,” Flynn’s attorneys wrote in a filing with the D.C. Circuit Court of Appeals on Monday.
In 2017, Flynn pleaded guilty to lying to the FBI during an investigation of Russia’s alleged interference during the 2016 presidential election. Even though he reaffirmed his plea a year later, he has since tried to withdraw it. The Department of Justice moved to drop the charge against him a few months ago.
Since then, Flynn has been fighting a legal battle against U.S. District Court Judge Emmet Sullivan, who is seeking to hold a hearing on whether he must dismiss the case against Flynn.
Sullivan has raised concerns over why the DOJ dropped Flynn’s prosecution. Instead of accepting the DOJ’s ruling, he asked for an outside opinion on the topic of whether he had to agree with the decision or if he could conduct a review before deciding if dismissal is in the interests of the justice system.
A D.C. Circuit panel voted 2-1 that Sullivan had to dismiss the case. But Sullivan has asked for the full appeals court to review the panel’s decision.
On Monday, Flynn’s lawyers argued Sullivan has no standing to request a full review and that the full appeals court should allow the original ruling to stand.
"To allow Judge Sullivan to delay and generate litigation against a criminal defendant is unconstitutional," Flynn’s lawyers, Sidney Powell and Jesse Binnall, wrote in the filing. “This action itself diminishes the status of the federal judiciary as an independent bulwark for the rule of law.”
Whether the full appeals court will review the case won’t necessarily have anything to do with Sullivan’s request. Any active D.C. Circuit judge can request a poll of the full court. Then, a majority of the judges must agree for the case to be reheard. If the court declines the full bench review, justices who disagree with the decision could put out written dissents.
The ongoing disagreement has led Flynn’s attorneys to call for a dismissal all together. They claim that even if Sullivan is permitted to draw out the case, he will have to drop the matter since prosecution decisions typically rest entirely with the executive branch.
"General Flynn also has a right not to hemorrhage time and money in a proceeding that is moot because the previously adverse parties are now aligned — or to receive orders from a judge no longer presiding over a live controversy," Powell and Binnall stated.
Flynn’s legal team say his guilty plea is void because the judge who accepted it, Rudolph Contreras, was later recused from the case. They said his reaffirmation of his guilty plea is also nullified because the judge didn’t ask “core questions.”
The DOJ is also scheduled to respond to Sullivan’s petition asking the appeals court to rehear the Flynn case en banc on Monday.
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