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Judge in Michael Flynn case defends decision not to immediately dismiss case

Flynn, Kislyak transcripts released
Flynn, Kislyak transcripts released 11:52

Judge Emmet Sullivan has filed a brief with the U.S. District of Columbia Appeals Court defending his decision not to immediately approve the Justice Department's request to dismiss its criminal case against former national security adviser Michael Flynn. In the brief, Sullivan's lawyer, Beth Wilkinson, pointed out the unusual aspects of the case and argued for allowing Sullivan to review the request before ruling on it.

After the Justice Department dropped its case against Flynn in May, it moved to dismiss the case, though Flynn had already been convicted and had, in the course of special counsel Robert Mueller's investigation, pleaded guilty to lying to the government about his conversations with the Russian envoy to the U.S. during the presidential transition period.

Sullivan decided to appoint a former federal judge, John Gleeson, to review the case and present arguments on whether Flynn should face contempt charges after claiming to be innocent of a crime for which he had previously pleaded guilty. 

Flynn's attorneys asked the federal appeals court to order Sullivan to grant the department's request and dismiss the case. But Sullivan urged the appeals court to stay out of the case until he has a chance to study the dismissal request.

Wilkinson argued the appeals court should not "short-circuit" Sullivan's ability to review the case.

"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," she wrote. "The answer is no."

The Justice Department argued in its brief that Sullivan doesn't have the authority "to stand in the way of a dismissal the defendant does not oppose" and urged the appeals court to order him to drop the case.

"Far from authorizing further proceedings at the district court's behest, the Constitution requires the court to honor the Executive's unopposed decision to drop the pending charges, and precludes the case from proceeding to sentencing in the absence of a live controversy," the Justice Department's lawyers wrote.

Though Flynn has admitted he lied to the FBI, the Justice Department said last month that the FBI should never have interviewed Flynn in the first place and that the communication he had with the ambassador was entirely appropriate.

The motion to dismiss Flynn's case followed the recommendation of U.S. Attorney Jeff Jensen, who was appointed by Attorney General William Barr to investigate the handling of the Flynn case.

Wilkinson, in her brief pointed out the unusual circumstances of the Department's position. "It is unprecedented for an Acting U.S. Attorney to contradict the solemn representations that career prosecutors made time and again, and undermine the district court's legal and factual findings, in moving on his own to dismiss the charge years after two different federal judges accepted the defendant's plea," she wrote.

The brief also noted that the Justice Department's motion to dismiss was not signed by any of the career prosecutors involved in the case, and that it cited "minimal legal authority" for some of it its positions.

Though Sullivan may end up granting the Justice Department's motion, he was duty-bound to seriously consider the significant legal issues that the case raised, the brief said.

Read the brief here:

Catherine Herridge contributed to this report.

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