The Department of Justice announced earlier this month that it was dropping its case against former National Security Adviser Michael Flynn, according to The Washington Post. However, that wasn’t good enough for Judge Emmet G. Sullivan, who is overseeing Flynn’s case and has decided to delay final resolution of the matter.
In a bizarre twist, the judge is considering whether to pursue a contempt finding against the retired Army general, and now, Flynn is seeking to have his charges formally dismissed and for Sullivan to be removed from the case, Breitbart reports.
Specifically, Flynn lawyer Sidney Powell is alleging that Sullivan is stepping outside his proper role as judge and attempting to effectively act as a prosecutorial agent.
Lawyer: Sullivan’s conduct “disturbing”
“The district court has disregarded the constitutional imperative of a ‘case and controversy’ and the ‘separation of powers’ that invests the power to prosecute solely in the executive branch,” Powell wrote in an emergency petition for a writ of mandamus filed with the D.C. Circuit Court of Appeals on Tuesday.
“In the American system, the parties ‘frame the issues for decision’ while the courts take the role of ‘neutral arbiter of matters the parties present,” Powell added. She went on:
The district court has no authority to adopt the role of prosecutor or change the issues in the case by inviting or appointing amici to perform the investigation or prosecution that the court deems appropriate.
According to Breitbart, those comments were in reference to Sullivan’s earlier decision to invite John Gleeson, a retired federal judge, to submit an amicus curiae (friend of the court) brief arguing against the bid by the Justice Department to drop its prosecution of Flynn and to discuss whether a contempt finding for perjury might be appropriate, as the New York Post reported.
“Less than two weeks ago, in [the case of] Sineneng-Smith, the Supreme Court unanimously reversed a similar usurpation by the Ninth Circuit in an opinion authored by a venerable alumna of this Court [Ruth Bader Ginsburg],” Powell pointed out Tuesday.
The Flynn attorney added: “The district court order appointing an amicus is both unauthorized and bespeaks a disturbing lack of appreciation of the court’s limited role when confronted with a motion to dismiss by the Government in a criminal case.”
Time to right the wrongs
The Department of Justice chose to drop its case against Flynn after a trove of previously withheld exculpatory evidence came to light, including information indicating that the FBI’s decision to interview Flynn in January of 2017 did not have a suitable investigatory basis, according to Politico.
“Through the course of my review of General Flynn’s case, I concluded the proper and just course was to dismiss the case,” U.S. Attorney Jeff Jensen said at the time, according to Fox. “I briefed Attorney General Barr on my findings, advised him on these conclusions, and he agreed.”
Reportedly among the evidence were handwritten notes in which Bill Priestap, the FBI’s former counterintelligence head, suggested that a key objective of the interview with Flynn was to “get him to lie, so we can prosecute him or get him fired.”
It is long past time for the wrongs committed against Gen. Flynn to be put right, and hopefully, Powell’s request will be granted so the D.C. Circuit Court of Appeals can compel Sullivan to fulfill his duties in this matter once and for all.