Attorney General Bill Barr's unprecedented effort to let former national security adviser Mike Flynn off scot-free hit yet another speed bump this week. Two judges on a three-judge appeals panel reviewing a request to force the dismissal of the case appeared very skeptical of the rationale for ordering a lower court judge to do so.
Flynn’s lawyers, with the blessing of the Justice Department, tried to strong-arm the federal judge handling the case, U.S. District Court Judge Emmet Sullivan, by asking the appeals panel to intervene and force the case’s dismissal. But D.C. Circuit Court of Appeals judges Karen Henderson and Robert Wilkins appeared mystified by the gall of the request, according to The Washington Post.
Henderson reminded Flynn's lawyer that Sullivan was under no legal obligation to simply acquiesce to the Justice Department's motion that the charges against Flynn be dropped. "You also know courts have said [Sullivan's] not a ‘mere rubber stamp’ either. There’s nothing wrong with him holding a hearing — there’s no authority I know of that says he can’t hold a hearing.”
Sullivan scheduled a proceeding on the DOJ motion and appointed a lawyer to argue against the department’s request. In a court filing this week, that court-appointed counsel, retired federal judge John Gleeson, called the department's effort a "highly irregular" and "gross abuse of prosecutorial power" intended to benefit a "political ally" of Trump. Gleeson also argued that judges have the authority to protect the court from "prosecutors who undertake corrupt, politically motivated dismissals.”
Judge Wilkins similarly sided with Henderson and Gleeson, citing two Supreme Court decisions which found federal judges had the authority “to perform an independent evaluation” before granting a government motion to drop a prosecution. “You’re saying the Supreme Court got it wrong?” Wilkins asked Flynn attorney Sidney Powell.
"No," Powell responded, arguing that the case was riddled with "well documented" prosecutorial misconduct and suppression of evidence. “The government has quit and it’s time to leave the field,” Powell said, adding, “the toll it takes on a defendant to go through this is absolutely enormous.”
Indeed. No one inspires more empathy than Mike Flynn, who deliberately lied to the FBI about his phone calls with Russian Ambassador Surgey Kislyak, in which he conspired against the Obama administration.
Cry us a river. It kind of seems like that's what Wilkins and Henderson were saying, in so many words.