Court Seems Open to Allowing Judge to Scrutinize Bid to Drop Flynn Case

WASHINGTON — A federal appeals court panel appeared inclined on Friday to permit a trial judge to complete his review of the Justice Department’s attempt to drop a criminal case against President Trump’s former national security adviser Michael T. Flynn, as all three judges asked skeptical questions about a request that they intervene and order the case dismissed now.

The nearly two hours of oral arguments, conducted by telephone because of the coronavirus pandemic and live-streamed over YouTube, were the latest step in an extraordinary and politically charged case against Mr. Flynn. He had twice pleaded guilty to lying to the F.B.I. about his conversations in 2016 with the Russian ambassador before Attorney General William P. Barr decided last month to attempt to drop the case, a highly unusual intervention.

Rather than immediately granting the government’s request, the federal judge overseeing the matter, Judge Emmet G. Sullivan, began a review of its legitimacy. He appointed John Gleeson, a former mafia prosecutor and retired federal judge, to argue against it and set arguments on the matter for July 16.

If the appeals court panel permits that process to play out, the Justice Department will have to respond to a scathing brief Mr. Gleeson submitted to Judge Sullivan this week that portrayed Mr. Barr’s decision as a “gross abuse” of power. The move undermined the rule of law by giving special favor to a presidential ally, offering a dubious rationale as a “pretext,” Mr. Gleeson wrote.

Last month, on the same day that Judge Sullivan appointed Mr. Gleeson to critique the Justice Department’s new position about the case, Mr. Flynn’s defense lawyer, Sidney Powell, asked the Court of Appeals for the District of Columbia Circuit to issue a so-called writ of mandamus that would order Judge Sullivan to immediately end the case.

But Beth Wilkinson, a lawyer representing Judge Sullivan, told the appeals court that short-circuiting the trial court’s review of the motion would be premature. And on Friday, all three judges asked questions that suggested they may agree.

Judge Robert L. Wilkins, a 2014 appointee of former President Barack Obama, stressed that the federal rule of criminal procedure under which the Justice Department asked Judge Sullivan to dismiss the case says prosecutors may make such a request “with leave of the court,” meaning the judge’s approval. He asked how those words could mean anything if judges had to rubber-stamp requests without review.

Judge Karen L. Henderson, a 1990 appointee of George Bush, repeatedly said Judge Sullivan might disagree with Mr. Gleeson’s view and dismiss the case. She suggested that “regular order” would be to let that process play out, noting that Ms. Powell and the Justice Department could come back to the appeals court if Judge Sullivan decides instead to sentence Mr. Flynn.

And Judge Neomi Rao, a 2019 appointee of Mr. Trump, pointed out that one of Ms. Powell’s arguments conflicted with Supreme Court precedent. She also asked a Justice Department lawyer whether he could come up with a more concrete reason for why letting Judge Sullivan’s review play out would harm the executive branch — noting that mandamus orders are supposed to be extraordinary and abstract notions of harms are likely insufficient.

The skepticism of Judges Henderson and Rao was particularly notable because both have been more willing than most colleagues to interpret the law in ways more favorable to the Trump administration in other politically charged cases like fights over congressional access to information the executive branch wants to keep secret.

Their random assignment to the panel had seemed to increase the possibility that Mr. Flynn might prevail even though many legal experts agreed that Ms. Powell’s request for immediate intervention by the appeals court at this stage was questionable. But all three judges on Friday seemed to share the view that Judge Sullivan had the power to hold a hearing.

If so, that will be bad news for the Justice Department, argued the deputy solicitor general, Jeffrey Wall. He called Mr. Gleeson’s brief attacking Mr. Barr’s decision to end the case a “polemic,” but said it would harm the executive branch to have to defend itself against it.

The department would likely have to provide information about its internal deliberations — including why no career prosecutor signed the motion to dismiss the charge against Mr. Flynn — in the spectacle of a “politicized” atmosphere, Mr. Wall said.

“There are real harms here and if we know what has to happen at the end of the day, with all respect, district court should be directed to do it now rather than have some unnecessary and very harmful proceedings,” he said.

The arguments on Friday left unanswered what would happen if Judge Sullivan were to reject the Justice Department’s motion to dismiss the case. Ms. Wilkinson took no position on whether a judge could sentence a defendant who had pleaded guilty even though the executive branch no longer wanted to pursue the case.

But Judge Henderson suggested that she took a skeptical view of Mr. Gleeson’s brief, saying that Judge Sullivan may have chosen an “intemperate” person to critique the Justice Department’s move. For all anyone knows, she added, the judge may say next month that Mr. Gleeson’s brief is “over the top” and grant the dismissal motion.

While previously represented by a different defense lawyer, Mr. Flynn had agreed to cooperate and pleaded guilty to one count of making a false statement to the F.B.I. about his conversations with the Russian ambassador. The deal resolved his liability for both his false statements to the F.B.I. and for failing to register as a paid foreign agent of Turkey and then lying about that work in belated registration forms.

But he switched defense representation to Ms. Powell and, in January, recanted his admission and sought to withdraw his plea. In the interim, Mr. Trump and his allies have made the case against Mr. Flynn a political cause by portraying him as a victim of F.B.I. and prosecutorial misconduct.

The attacks are part of the larger effort to discredit the investigation into whether Trump campaign associates coordinated activities with the Russian government during its covert operation in 2016 to tilt the election in Mr. Trump’s favor. Mr. Trump had said he was considering pardoning his former aide before Mr. Barr’s intervention.

Mr. Barr’s handling of legal matters related to the Russia investigation has come under repeated judicial scrutiny. In March, Judge Reggie B. Walton, also of the District of Columbia, called into question his credibility on the topic in a ruling about a Freedom of Information Act case seeking a less-censored version of the report by the special counsel, Robert S. Mueller III.

Judge Walton said Mr. Barr’s description of Mr. Mueller’s findings and conclusions before he made the report public in redacted form had been “distorted” and “misleading,” suggesting the attorney general had sought to torque public understanding of it in a way that favored Mr. Trump.

Also on Friday, the Justice Department told Judge Walton that it is reprocessing the Mueller report in light of the conclusion of the criminal trial of Roger J. Stone Jr., Mr. Trump’s longtime friend and informal adviser, and may make public a version of the report revealing previously concealed references to evidence about Mr. Stone by June 19.

Adam Goldman and Katie Benner contributed reporting.

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