Former national security adviser Michael Flynn exits a vehicle as he arrives for his sentencing hearing at U.S. District Court in Washington, U.S., December 18, 2018.
Jonathan Ernst | Reuters
In an unusual hearing, a full federal appeals court began considering arguments Tuesday over whether the criminal case against former Trump national security advisor Michael Flynn should be dismissed, as the Justice Department has requested.
Flynn’s lawyer, Sidney Powell, said that the trial judge in the case, Emmet Sullivan, has “discarded any semblance of the unbiased impartial adjudicator” he is expected to be.
Powell also said that Sullivan now has the “now-glaring appearance of bias” for millions of Americans.
But Powell faced a highly skeptical-sounding group of appeals judges that aggressively questioned her argument that Sullivan had little power to do anything but to grant the Justice Department’s request to drop its prosecution of Flynn.
“The judge has to do some thinking about it, right? The judge is not simply a rubber stamp,” one of the judges asked Powell.
The hearing before all of the judges on the appeals court in Washington, D.C., is being held because a majority of the court’s judges last month tossed out a ruling by a three-judge panel from the same court. The panel had directed that the case be dismissed.
The case is unusual for several reasons. The Justice Department rarely asks for a case to be thrown out after a defendant has already pleaded guilty. The judge refused to immediately grant the dismissal. The issue was appealed to a higher court. That appeals court then tossed out a panel’s ruling and granted a re-hearing on the dispute.
Flynn has pleaded guilty in late 2017 to lying to the FBI about his talks with a Russian diplomat shortly before President Donald Trump was sworn in to office.
But the Justice Department earlier this year moved to dismiss the case, saying the FBI’s investigation of Flynn did not have a legitimate basis.
Sullivan did not promptly rule on that request. Instead, Sullivan appointed a lawyer to argue to him the position that the case should not be tossed. Sullivan also allowed other outside parties to weigh in on the question.
Flynn’s lawyers then appealed to the federal circuit court of appeals for Washington, asking that court to direct the dismissal, and remove Sullivan from the case.
After the three-judge panel agreed with that request, Sullivan himself appealed the decision, and sought a rehearing from the full line-up of judges on the appeals court, which he was granted.
Powell on Tuesday said the process that Sullivan “created,” in allowing outside comment before ruling on the Justice Department’s dismissal request, “is beyond the pale.”
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