Appeals court orders Flynn judge to defend actions, as legal scholars weigh in

Washington Post May 22, 2020 at 1:10 p.m. EDT

An appeals court Thursday ordered the judge in Michael Flynn’s case to defend his actions after Flynn’s attorneys asked that his conviction be dismissed immediately, as requested by the Justice Department.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit took the unusual step of ordering U.S. District Judge Emmet G. Sullivan to answer within 10 days accusations from Flynn, President Trump’s former national security adviser. The court also invited the Justice Department to comment.

The order comes as legal scholars from across the political spectrum debated the case’s implications for judicial independence and the Constitution’s separation-of-powers design.

“This case does not involve a decision by the Executive Branch simply to ‘drop’ a prosecution,” but a “virtually unprecedented decision” to dismiss a case after it has been won, wrote a group of about 20 legal experts, led by Harvard law professor Laurence H. Tribe, in a brief the group requested to file Friday.

Sullivan last week paused Flynn’s case and invited outside groups and a retired federal judge to argue against the Justice Department’s May 7 request to toss the former three-star general’s conviction. Sullivan also asked the retired judge to examine whether Flynn may have committed perjury while pleading guilty to lying about his pre-inauguration contacts with Russia’s ambassador.

Flynn’s attorneys responded Tuesday by asking the D.C. Circuit to intervene, accusing Sullivan of bias and overreaching into what they called prosecutors’ exclusive authority to decide whether to drop a case.

Sullivan’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,” Flynn lawyer Sidney Powell wrote. Conservative legal analysts and commentators have also weighed in on the controversy, saying the Justice Department should be allowed to undo Flynn’s conviction without judicial interference.

“Under the American Constitution, the three separate branches are expected to clash with one another,” Tim Lynch, former director of the Cato Institute’s project on criminal justice, wrote recently for the Federalist Society. “Even still … judges must respect the prerogatives that fall within the constitutional boundaries of the executive branch. The prerogative to prosecute, or not prosecute, is one of those prerogatives.”

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