WASHINGTON – Lawyers for Michael Flynn are asking a federal appeals court to order the dismissal of the criminal case against the former Trump administration national security adviser.
They also want the case reassigned to a different judge, saying the one now handling it overstepped his authority when he did not immediately grant the Justice Department’s request to dismiss the case. Instead, U.S. District Judge Emmet Sullivan appointed a retired judge to argue against the department's position and to consider whether Flynn, who previously admitted lying to federal agents but now asserts his innocence, should be held in criminal contempt for perjury.
Sullivan has scheduled arguments on the dismissal motion for July 16.
The filing Tuesday with the Washington-based appeals court is the most extensive response by Flynn's lawyers to the Justice Department's motion earlier this month to throw out the case. It seeks to bypass the judge handling the case before he's even had a chance to rule on the dismissal request, anticipating that the motion may not be as open-and-shut of a matter as the department and the defense team might have hoped.
Flynn pleaded guilty as part of special counsel Robert Mueller's Russia investigation to lying to the FBI about conversations with the Russian ambassador during the presidential transition period.
But the Justice Department now says the FBI had insufficient basis to interview him in the first place and that the statements he made during questioning were not material to the underlying investigation into ties between Russia and the 2016 Trump campaign.
The department two weeks ago asked Sullivan to dismiss the case, but the judge days later signaled that he was inclined to take his time with the request. He announced that he would permit outside parties to weigh in with their viewpoints and appointed a retired federal judge from New York, John Gleeson, to argue against the department's position.
In an emergency petition Tuesday, Flynn's attorneys said Sullivan had “egregiously" overstepped his authority. They argued that the judge “has no authority to adopt the role of prosecutor or change the issues in the case."
“This is an umpire who has decided to steal public attention from the players and focus it on himself," the lawyers wrote. “He wants to pitch, bat, run bases, and play shortstop. In truth, he is way out in left field.”
They asked the appeals court to order Sullivan to dismiss the case, as well as to reassign whatever remaining court proceedings must take place to another judge.
“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,” the filing states.
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