Flynn lawyers file petition asking for dismissal of criminal charges

Flynn lawyers file petition asking for dismissal of criminal charges
© Stefani Reynolds

Michael Flynn's lawyers filed an emergency petition on Tuesday asking a federal appeals court to force a judge to dismiss the criminal charges against the former national security adviser.

Flynn's legal team is asking the D.C. Circuit Court of Appeals to intervene as a judge delays consideration of the Department of Justice's (DOJ) extraordinary decision to drop charges that Flynn lied to the FBI in 2017 about his contacts with a Russian diplomat.

Judge Emmet Sullivan, who was appointed to the federal district court in Washington, D.C., by former President Clinton, has appointed a former judge to argue against the DOJ's move.

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In their petition, Flynn's lawyers asked the D.C. Circuit to grant the DOJ's motion and remove Sullivan and his appointee from the case.

"An innocent man has been the target of a vendetta by politically motivated officials at the highest level of the FBI," the filing reads. "The egregious Government misconduct, and the three-year abuse of General Flynn and his family, cry out for ending this ordeal immediately and permanently. The district judge’s orders reveal his plan to continue the case indefinitely, rubbing salt in General Flynn’s open wound from the Government’s misconduct and threatening him with criminal contempt."

Sullivan tapped John Gleeson, a former federal judge in New York who was also appointed to the bench by Clinton, to act as an amicus — or friend of the court — to present a legal argument against the DOJ dropping the charges and to explore whether Flynn committed perjury in withdrawing an earlier guilty plea.

The move effectively stalled the DOJ's effort to withdraw its case, which had raised concerns that the administration was intervening on behalf of President TrumpDonald John TrumpBiden on Trump's refusal to commit to peaceful transfer of power: 'What country are we in?' Romney: 'Unthinkable and unacceptable' to not commit to peaceful transition of power Two Louisville police officers shot amid Breonna Taylor grand jury protests MORE's ally.

Flynn's lawyers wrote on Tuesday that appointing an amicus in a criminal case violates the separation of powers that gives the executive branch the sole authority to try criminal cases in federal court.

"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," they wrote in the petition.

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The Justice Department stunned legal observers earlier this month when it moved to drop the charges, saying it no longer had confidence that it could prove its case.

"The Government is not persuaded that the January 24, 2017 interview was conducted with a legitimate investigative basis and therefore does not believe Mr. Flynn’s statements were material even if untrue," the department said in its motion. "Moreover, we [do] not believe that the Government can prove either the relevant false statements or their materiality beyond a reasonable doubt."

Flynn had admitted in court that he lied to the FBI about his conversations with Sergey Kislyak, Russia's then-ambassador to the U.S., during the transition period between the 2016 election and Trump's inauguration.

The former three-star Army general had told investigators that he had not cautioned Kislyak against imposing retaliatory sanctions against the U.S.

It's unclear how the D.C. Circuit will handle Flynn's emergency petition, which will have to clear a high legal threshold in order to succeed.

If the case before Sullivan proceeds as planned, Gleeson will lay out his case against Flynn on June 10 and he, the DOJ and Flynn's lawyers will appear for oral arguments on July 16.

Updated at 5:23 p.m.