WASHINGTON — The Justice Department’s conduct in abruptly deciding to end the case against President Trump’s former national security adviser Michael T. Flynn was so unusual that it raised a “plausible question” about the legitimacy of the move, a lawyer for the trial judge overseeing that case told a federal appeals court on Monday.
In a 36-page filing, the lawyer for Judge Emmet G. Sullivan of the United States District Court for the District of Columbia asked a three-judge panel not to cut short his review of the factual and legal issues surrounding the case. A defense lawyer for Mr. Flynn had asked the appellate panel to issue a so-called writ of mandamus ordering the judge to immediately dismiss it without letting him complete an assessment.
“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,” wrote the lawyer, Beth Wilkinson. “The answer is no. Mandamus is an extraordinary remedy that should be denied where the district court has not actually decided anything.”
But the Trump administration, in its own brief, urged the appeals court to shut down the case without any further review. Decisions about whether to prosecute or drop a case are for the Justice Department, and Judge Sullivan has “no authority” to reject the executive branch’s decision in the matter, the government argued.
“The district court plans to subject the executive’s enforcement decision to extensive judicial inquiry, scrutiny, oversight and involvement,” said the Justice Department brief, which was signed by the solicitor general, Noel J. Francisco, and other officials, including Jocelyn Ballantine, a career prosecutor on the case. “Under the Supreme Court’s and this court’s precedents, it is clear and indisputable that the district court has no authority to embark on that course.”
Mr. Flynn had twice pleaded guilty to lying to the F.B.I. in January 2017 about his conversations with the Russian ambassador the previous month, during the transition period after Mr. Trump won the election. His plea was part of a deal with prosecutors to also resolve liability for failing to register as a paid foreign agent of Turkey in 2016 and then signing forms where he lied about that work.
But last month, Attorney General William P. Barr directed the Justice Department to drop the case against Mr. Flynn, putting forward a theory that his lies to the F.B.I. were immaterial to any legitimate investigation. Neither Ms. Ballantine nor other career prosecutors involved in the case signed that motion, which was instead submitted to Judge Sullivan by a former aide to Mr. Barr, whom he had installed as interim U.S. attorney.
The department had disclosed earlier that just before the F.B.I. learned of Mr. Flynn’s calls with the Russian ambassador, the bureau had decided to close a case scrutinizing whether Mr. Flynn was a Russian agent. Instead of closing the case, the calls prompted agents to ask Mr. Flynn about them. The department also reversed its position that Mr. Flynn’s lies were relevant to the broader investigation into Russian interference in the 2016 election and links to the Trump campaign.
Judge Sullivan appointed a retired judge from Brooklyn, John Gleeson, to critique the government’s request and help evaluate whether Mr. Flynn’s contradictory statements under oath amounted to criminal contempt of court. Mr. Flynn’s defense lawyer then asked the appeals court to force Judge Sullivan to immediately dismiss the charge, arguing that her client had been abused, and a panel ordered the judge to explain himself.
Defending Judge Sullivan’s decision to appoint a “friend of the court” to critique the government’s new position, Ms. Wilkinson — a well-known trial lawyer and former federal prosecutor who helped represent Justice Brett Kavanaugh during his Supreme Court confirmation fight — cited several cases in which judges have taken that step to ensure they would have adversarial arguments to consider when the prosecution and the defense had aligned.
The Justice Department and lawyers for Mr. Flynn have argued that Judge Sullivan has little choice but to drop the case, citing a 2016 opinion by the Court of Appeals for the District of Columbia Circuit that said that the judiciary “generally lacks authority to second-guess” executive branch decisions about whether to charge or drop a case. But in the new filing, Ms. Wilkinson argued that the 2016 case was different for several reasons.
Among them, the trial judge in the 2016 case had already made a decision about the issue in dispute, but Judge Sullivan has not. That case did not involve a defendant who had already pleaded guilty, as Mr. Flynn has. And, Ms. Wilkinson argued, the prosecution’s abrupt reversal in the Flynn case suggested there might be something irregular, justifying the judge carefully scrutinizing it.
The department’s motion to dismiss the charge, she noted, “featured no affidavits or declarations supporting its many new factual allegations; it was not accompanied by a motion to vacate the government’s prior, contrary filings and representations; it cited minimal legal authority in support of its view on materiality; and it did not mention the March 2017 statements regarding Mr. Flynn’s work for Turkey that were relevant conduct for his guilty plea.”
Ms. Wilkinson also noted that Judge Sullivan needed to resolve the contempt-of-court issue, apart from deciding whether to dismiss the false-statements charge against Mr. Flynn, and argued that it would be more efficient for him to assess all the issues together.
But the Justice Department brief argued that Judge Sullivan had no basis to independently scrutinize whether Mr. Flynn lied under oath to the court, because even if he did, that should be treated as the crime of perjury — which only the Justice Department can prosecute — rather than as contempt of court.
Katie Benner contributed reporting.
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