WASHINGTON (Reuters) - A U.S. appeals court on Friday appeared skeptical of the Justice Department’s unprecedented effort to drop a criminal case against President Donald Trump’s former adviser Michael Flynn, signaling no quick end to the politically charged prosecution.
U.S. Circuit Judge Karen Henderson, an appointee of President George H.W. Bush, said the lower-court judge overseeing the case was not a “rubber stamp” and there was nothing wrong with U.S. District Judge Emmet Sullivan hearing arguments about whether to let the Justice Department drop the case.
Flynn twice pleaded guilty to the charge the Justice Department is now trying to drop.
Lawyers for the Justice Department and Flynn argued that Sullivan had trampled on the executive branch’s powers.
Attorney General William Barr ordered the department last month to dismiss the case against Flynn, Trump’s first national security adviser, following pressure from Trump and his allies, leading to criticism that Barr was using his office to help the president’s political allies.
“We are here now today stop further impermissible intrusion into the sole power of the executive branch,” said Sidney Powell, a lawyer for Flynn.
U.S. Circuit Judge Robert Wilkins, an appointee of President Barack Obama, asked skeptical questions of Powell. Wilkins suggested that under the court’s precedent Sullivan could conduct an “independent evaluation” of whether to drop the Flynn case.
Jeff Wall, a Justice Department lawyer, said Sullivan’s handling of the case had harmed the integrity of the executive branch and the judiciary.
“This has already become, and I think is only becoming more of, a public spectacle,” Wall said.
Beth Wilkinson, an attorney retained to represent Sullivan, argued it would be premature to force Sullivan to act before he has weighed all the facts before ruling.
“All this court is doing is getting advice,” she said.
The unusual nature of the case has drawn national attention, with 27,000 people listening to the arguments online.
Flynn, a retired Army lieutenant general, was one of several former Trump aides charged under former Special Counsel Robert Mueller’s investigation that detailed Moscow’s interference in the 2016 U.S. presidential election.
Flynn twice pleaded guilty to lying to the FBI about his conversations with Russia’s then-ambassador, Sergey Kislyak.
Flynn switched lawyers to pursue a new scorched-earth tactic that accused the FBI of entrapping him, and asked the judge to dismiss the charge.
Sullivan refused to go along and tapped retired Judge John Gleeson to present arguments for why the charge should not be dismissed.
U.S. Circuit Judge Neomi Rao, who was appointed by Trump, appeared skeptical about whether Sullivan has authority to sentence Flynn when prosecutors want to drop the case.
“Where the government decided to drop a prosecution and the defendant agrees ... who are they arguing on behalf of?” she asked Wilkinson.
Henderson appeared to defend Sullivan’s decision to tap Gleeson, noting that it may be premature for the appeals court to get involved.
“He may say ... you know, I asked for advice and I’m ignoring it,” Henderson said. “Shouldn’t he be allowed to do that?”
Reporting by Sarah N. Lynch and Jan Wolfe; Editing by Scott Malone and Jonathan Oatis
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