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Michael Flynn asks D.C. Circuit to force judge to drop case against him

Obama admin. ordered Flynn "unmasking"
Obama admin. ordered Flynn "unmasking" 12:10

Washington — Michael Flynn, President Trump's former national security adviser, is asking the federal appeals court in the District of Columbia to order a federal district court judge to grant a request from the Justice Department to dismiss its case against him and reassign the case to another judge for any future proceedings.

Flynn's attorneys filed a petition for a writ of mandamus with the U.S. Court of Appeals for the District of Columbia Circuit on Tuesday that would force U.S. District Judge Emmet Sullivan to approve the Justice Department's motion, which was filed May 7. 

Sidney Powell, Flynn's lawyer, wrote in the filing that the request from the Justice Department to drop the criminal case against him came after an internal review from U.S. Attorney Jeffrey Jensen, who was tapped by Attorney General William Barr to review the case earlier this year. That review, Powell said, "unearthed stunning evidence of government misconduct and General Flynn's innocence."

The Justice Department wrote in its motion to dismiss the case against Flynn that "continued prosecution of this case would not serve the interests of justice" and said the government had concluded the FBI's January 2017 interview of Flynn was "untethered to, and unjustified by, the FBI's counterintelligence investigation." The government, the Justice Department added, "is not persuaded" that Flynn's interview "was conducted with a legitimate investigative basis."

In an exclusive interview with CBS News' Catherine Herridge, Barr explained the department's decision, saying, "we feel really that a crime cannot be established here because there was not, in our view, a legitimate investigation going on. They did not have a basis for a counterintelligence investigation against Flynn at that stage, based on a perfectly legitimate and appropriate call he made as a member of the transition."

Sullivan has not yet ruled on the motion and has indicated he would not do so immediately. Last week, he selected former federal Judge John Gleeson from New York to file a brief mounting opposing arguments to the government's change in position. The parties are due to argue in court on July 16.

Gleeson was also tasked with reviewing whether or not Flynn should be subject to a contempt hearing after previously pleading guilty under oath to lying to the FBI and later publicly touting his innocence. 

Sullivan, who sits on the federal district court in D.C., also put the Justice Department's request to drop the criminal case against Flynn on hold to allow outside individuals and organizations to submit legal briefs in response to the Justice Department's motion. 

Flynn's emergency request includes a plea to the court of appeals to block input from third parties and to reassign his case to another district court judge. In the petition, Flynn's legal team accuses Sullivan, who has served on the federal bench for over 20 years, of politicization and bias against the former national security adviser. 

"In the midst of a national election season, with unprecedented acrimony on all sides of the civic debate, the district judge has dragged the court into the political hurricane — cementing the notion that judges are politicians in robes who use their authority to thwart what they consider the 'corruption,' 'impropriety,' and 'improper political influence' of another one of the political branches," Powell wrote to the D.C. Circuit.

Powell also accused Sullivan of abandoning "any pretense of being an objective umpire — going too far as to suggest that a criminal defendant who succumbs to a coerced and unfair plea bargain should be prosecuted for contempt." The reference of an umpire is a nod to Chief Justice John Roberts' 2005 characterization of judges as independent figures whose job is to call balls and strikes.

"This is an umpire who has decided to steal public attention from the players and focus it on himself," Powell said of Sullivan. "He wants to pitch, bat, run bases, and play shortstop. In truth, he is way out in left field."

Sullivan was appointed to two separate courts in D.C. by Presidents Ronald Reagan and George H.W. Bush, and to the federal bench by President Bill Clinton in 1994.

The case against Flynn stemmed from special counsel Robert Mueller's investigation into Russian meddling in the 2016 presidential election and ties between the Trump campaign and Russia.

In December 2017, Flynn pleaded guilty to one count of lying to federal investigators about his contacts with former Russian ambassador to the U.S Sergey Kislyak after the election and before Mr. Trump took office. But in January, Flynn asked the federal district court to allow him to withdraw his guilty plea, pointing to the government's "bad faith, vindictiveness and breach of the plea agreement."

The request from Flynn comes as a newly declassified email from Susan Rice, President Obama's national security adviser, shows former FBI Director James Comey was concerned about Flynn's discussions with Kislyak but didn't believe Flynn shared classified information with the Russian envoy. The full text of the email was declassified by the Trump administration and obtained by CBS's Herridge on Tuesday.

Rice sent an email to herself on Inauguration Day, January 20, 2017, detailing a meeting held in the Oval Office two weeks prior about the FBI's investigation into Russian meddling and Flynn. Present for the meeting were Mr. Obama, then-Vice President Joe Biden, Comey, Rice and then-acting Attorney General Sally Yates.

According to Rice's newly-declassified account of the meeting, Comey "affirmed that he is proceeding 'by the book' as it relates to law enforcement."

"From a national security perspective, Comey said he does have some concerns that incoming NSA Flynn is speaking frequently with Russian Ambassador Kisylak," Rice wrote in the email she sent to herself. "Comey said that could be an issue as it relates to sharing sensitive information.  President Obama asked if Comey was saying that the NSC should not pass sensitive information related to Russia to Flynn. Comey replied 'potentially.'  He added that he has no indication thus far that Flynn has passed classified information to Kisylak, but he noted that 'the level of communication is unusual.'"

Here is the Rice letter:

Rice's spokeswoman issued a statement Tuesday night on the emails: "As Ambassador Rice previously said, she welcomes the release of the entirety of her January 20, 2017 email, which confirms what she and others have indicated all along: that the Obama administration had legitimate counter-intelligence concerns about national security advisor-designate Flynn's communications with Russia. Thus, President Obama sought guidance from the FBI as to whether or not it was prudent to share detailed Russia-related information with him during the transition process."

Mr. Obama and Biden have come under attack by Mr. Trump and his conservative allies in recent days after two Republican senators made public a list of 39 top officials, including Biden, who requested intelligence reports that "unmasked" Flynn's identity in 2016 and 2017.

Dubbing the episode "Obamagate," the president has accused his predecessor of committing a crime and has suggested he be called to testify before Congress.

But Barr said Monday he does not expect an ongoing, wide-ranging investigation into the origins of the FBI's probe will lead to a criminal investigation of either Obama or Biden.

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