Flynn Files Petition to Have Criminal Case Dropped, Future Proceedings Assigned to Different Judge

Former Trump National Security Adviser Michael Flynn filed a petition with the U.S. Court of Appeals for the District of Columbia Circuit on Tuesday, asking the criminal case against him be definitively dismissed as requested by the Department of Justice.

It also seeks to end the appointment of a court advocate and reassign the case to new judge.

The filing by Gen. Flynn attorney Sidney Powell states, "Petitioner respectfully requests that this Court order the district court immediately to (1) grant the Justice Department's Motion to Dismiss; (2) vacate its order appointing amicus curiae; and (3) reassign the case to another district judge as to any further proceedings."

Judge Emmet Sullivan was overseeing the case, opposing the DOJ dismissal of Flynn's case, and had appointed retired federal Judge John Gleeson to weigh possible contempt and perjury charges.

"Neither the Federal Rules of Criminal Procedure, nor the district court's local rules authorize amicus participation in criminal cases," Powell wrote in Tuesday's filing. "Prior to issuance of its extraordinary May 12, 2020, order, the district judge adhered scrupulously to the district court's rules, denying some two dozen attempts by third parties to intervene or file amicus briefs in this very case."

Powell's filing cited legal precedent supporting the appeal and acknowledge exculpatory evidence that justified the withdrawing of Flynn's guilty plea on one count of lying to a federal agent on the matter related to a Trump transition contact with a Russian Amb. Sergey Kislyak.

"Now additional facts have established he was not interviewed for a legitimate purpose, and therefore any statements he made were not 'material' under 18 U.S.C. §1001, the government justly believes that he is not guilty of any crime," Powell wrote.

Handwritten notes declassified by the DOJ revealed alleged actions by FBI agents to either get Gen. Flynn to admit violating the Logan Act, pin him down for a "lie," or get him fired as Trump's first national security adviser early in January 2017 before President Trump's inauguration.

The Logan Act of 1799 is an outdated law, according legal expert Alan Dershowitz, and has never been used in a criminal prosecution. It was intended to keep American citizens from acting on behalf of the U.S. government overseas in the era before telephones.

Flynn was acting on behalf of the incoming national security adviser during the Trump transition.

"Gen. Flynn could swear truthfully that he committed the acts constituting the crime with which he was charged — after all he had no duty to tell FBI line agents about missions he undertook in his capacity as security adviser to the president-elect — but he had to accept on faith that the questions were 'material' to a legitimate criminal investigation, even though that was not made clear to him at the time," Powell argued in the appeal.

"In truth, they were not. Because the government failed to disclose this information to the defense, Gen. Flynn had no way of knowing that it was false."

Powell is also appealing to have Judge Sullivan taken off Gen. Flynn's case.

"If the court grants the principal relief petitioner seeks, there may not be much by way of further proceedings in the case, but there could be," Powell wrote. "Petitioner, the government, and the appearance of justice will best be served by having another judge — one who has not implied that [Flynn] is a traitor — conduct any further proceedings in the case."

And, she added, Judge Sullivan is exceeding his judicial authority by assigning a court advocate in Judge Gleeson.

"The district judge's latest actions— failing to grant the Government’s Motion to Dismiss, appointing a biased and highly political amicus who has expressed hostility and disdain toward the Justice Department's decision to dismiss the prosecution, and the promise to set a briefing schedule for widespread amicus participation in further proceedings — bespeaks a judge who is not only biased against Petitioner, but also revels in the notoriety he has created by failing to take the simple step of granting a motion he has no authority to deny," Powell's filing argued.

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