Michael Flynn’s lawyer says she asked Trump not to pardon the former national security adviser

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Michael Flynn’s lawyer asked President Trump not to pardon his former national security adviser and personally briefed the president on Flynn’s case in recent weeks, his attorney told a judge during a Tuesday hearing reviewing the Justice Department’s bid to dismiss the prosecution.

Sidney Powell, a lawyer for Flynn, told the judge she had talked with Trump and a legal adviser for his campaign and “asked him not to issue a pardon and gave him the general update.”

Powell said that was the only time she had talked with Trump about Flynn’s case. She told the judge she had not asked the president to have Attorney General William P. Barr intervene and assign new attorneys to the matter.

The exchange between Powell and U.S. District Judge Emmet G. Sullivan was one of the most notable during a hearing for the court to assess whether to grant a request from the Justice Department and Flynn’s attorney to dismiss the former three-star general’s prosecution. Flynn was the highest-ranking Trump adviser charged in special counsel Robert S. Mueller III’s Russia investigation.

Throughout the hearing, Sullivan emphasized that his role is not to serve as a “rubber stamp” in reviewing Barr’s request to close the case after Flynn pleaded guilty to lying to the FBI about his Russian contacts before Trump took office in 2017.

The Justice Department pushed back forcefully Tuesday against assertions that it had abandoned the case against Flynn for political reasons. Kenneth C. Kohl, a veteran career prosecutor in the U.S. attorney’s office in Washington, told Sullivan that the “allegations against our office that we somehow acted with a corrupt political motive are just not true. It didn’t happen here.”

The decision to dismiss the case, he said, “was the right call for the right reasons.”

The climactic confrontation could help define the limits of executive- and judicial-branch powers and comes weeks before an election in which Flynn’s contentious prosecution has electrified President Trump’s supporters and opponents.

The hearing follows an 8-to-2 decision from the full U.S. Court of Appeals for the D.C. Circuit in August that denied Flynn’s request, backed by the Justice Department, to shut down Sullivan’s planned review. The court’s order also directed Sullivan to act “with appropriate dispatch.”

[Flynn pleads guilty to lying to FBI over contacts with Russian ambassador]

Flynn, 61, has been awaiting sentencing since pleading guilty in December 2017 to lying about his contacts with Russia’s ambassador after Moscow intervened to support Trump in the 2016 U.S. election.

Trump and his allies have made Flynn’s cause a focus of efforts to discredit the criminal inquiry into whether individuals associated with Trump’s campaign cooperated with Russia’s illegal assistance. The efforts include government disclosures that have drawn fresh scrutiny to the judgment of FBI agents and Mueller prosecutors but have not undercut findings that the FBI had a legal basis to open the wider investigation and acted without political bias.

The Justice Department in May moved to drop Flynn’s guilty plea to lying about his pre-inauguration contacts with then-Ambassador Sergey Kislyak, in which Flynn asked that Moscow not respond to U.S. sanctions until Trump took office. The department based the reversal on Barr’s conclusion from a review he ordered that Flynn’s interview by the FBI “was unjustified by the counterintelligence investigation into [him]” and so his lies were immaterial to any crime.

[A battle is looming over a judge’s power and an attorney general’s motives in the case of Trump’s former national security adviser]

Law enforcement officials and Democratic critics condemned the turnabout, accusing Barr of undermining the department and protecting the president, citing the drive to exonerate Flynn and soften the sentencing of Trump friend Roger Stone for lying to investigators in a House Russia probe. They also point to efforts to facilitate the early prison release of former Trump campaign chairman Paul Manafort, convicted of crimes stemming from his lobbying for a pro-Russian politician in Ukraine.

Tuesday’s hearing turns on a federal rule that requires U.S. prosecutors to obtain “leave of court” — or permission from a judge — before dismissing a prosecution. Sullivan, the longest-serving active federal judge on the district court in Washington and a judicial nominee of presidents of both parties, appointed former New York federal judge John Gleeson to argue against the government to preserve an adversarial proceeding.

Sullivan cited Gleeson’s argument Tuesday that the rule gives judges a limited but vital role and was passed specifically to guard against “politically corrupt dismissals.” Sullivan stressed his authority to decide the matter, reading twice from an earlier court opinion that a judge not “serve merely as a rubber stamp” on a prosecutors’ decision to dismiss a case.

Sullivan also sounded skeptical of the Justice Department’s assertion that Flynn’s lies were irrelevant because they were not connected to another crime. The judge said it is never a defense to lying to say that “the government was not actually deceived,” or to argue that prosecutors cannot investigate a subject who lies.

Justice Department lawyer Hashim Mooppan told Sullivan that the government was “not suggesting that this court is a rubber stamp, or that the court has no role to play whatsoever.” But he said the court should not “second guess the executive branch’s authoritative position.”

The hearing was held remotely Tuesday via video and telephone conference because of the coronavirus pandemic. The proceedings were interrupted for a stretch because of technical problems.

A swift ruling is expected. Flynn’s attorneys claim the judge has engaged in a “flagrant personal and partisan assault” against him. The Justice Department asserts the executive branch has sole power to dismiss cases. Gleeson argues the Supreme Court intended for the judicial branch to weigh whether dismissal is in the public’s interest before approving corrupt or politically motivated requests.

[Meet the judge who will decide Flynn’s case, one of the Justice Department’s most probing skeptics]

Flynn pleaded guilty to lying in an FBI interview on Jan. 24, 2017, to conceal conversations with Kislyak. Flynn repeated the lie to White House staffers and Vice President Pence, leading to the firing of Trump’s first national security adviser three weeks later.

Flynn cooperated with the Mueller probe, and leniency was initially recommended at sentencing. But he switched course after Mueller’s investigation, accusing prosecutors and his former defense attorneys of concealing FBI misconduct and coercing him into pleading guilty.

The department rejected those claims through the past year, and Sullivan ruled Flynn was relying on bogus theories to deny Mueller’s central finding of Russian interference and to wriggle out of his repeated sworn admissions of misconduct.

“The sworn statements of Mr. Flynn and his former counsel belie his new claims of innocence and his new assertions that he was pressured into pleading guilty to making materially false statements to the FBI,” Sullivan wrote in December.

But at Barr’s direction, the Justice Department launched a review of the case in January. In moving to dismiss Flynn’s conviction on May 7, it cited “frail and shifting justifications for its ongoing probe,” the FBI’s irregular moves to question him and earlier abuses in surveillance applications.

The department cited recently uncovered FBI records including communications showing the bureau had decided to close a counterintelligence investigation of Flynn — dubbed Operation Razor — before learning of his December 2016 calls with Kislyak. The Justice Department also said that the FBI knew from transcripts that the calls probably did not give rise to a crime by themselves and that FBI officials differed over how to handle or interpret his actions.

In response, more than 1,100 former prosecutors said in a friend-of-the-court brief that the Justice Department distorted facts and appeared to have been bent to serve the president’s will.

[Justice Dept. request to toss Flynn conviction was ‘corrupt,’ ‘politically motivated,’ court-appointed adviser argues]

Gleeson urged Sullivan to deny the dismissal motion, calling it “a gross abuse of prosecutorial power.”

“The Government has engaged in highly irregular conduct to benefit a political ally of the President,” Gleeson summarized, saying, “There is clear evidence . . . [that it] reflects a corrupt and politically motivated favor unworthy of our justice system.”

Gleeson argued the FBI had ample, legitimate grounds to investigate Flynn’s lies, which went to the heart of the investigation of whether Trump’s campaign coordinated with Russia’s intervention in the election, whether Flynn was seeking to reward Russia at Trump’s direction or that of others, and whether his lies exposed Flynn to Russian blackmail.

[Court asks retired judge to oppose Justice Dept. effort to drop Flynn case]

Flynn faces a sentence of zero to six months under his initial plea deal. Flynn’s initial defense team postponed a December 2018 sentencing hearing after Sullivan balked at a recommendation of probation. At one point, Sullivan summarized Flynn’s lies to the FBI and to the White House and about his lobbying work for Turkey by saying, “Arguably, you sold your country out.”

Flynn hired new attorneys in June 2019, led by former federal prosecutor Sidney Powell, who called Sullivan’s actions in the case unconstitutional. She argued that the “Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.”

The Justice Department agreed. Acting solicitor general Jeffrey B. Wall called Sullivan’s inquiry impermissible, arguing to the D.C. Circuit that it “would usurp the core executive power to decide whether to continue a prosecution.”

Read more:

Justice Dept. moves to drop case against Michael Flynn

Court asks retired judge to oppose Justice Dept. effort to drop Flynn case

Flynn pleads guilty to lying to FBI about contacts with Russian ambassador

A battle is looming over a judge’s power and an attorney general’s motives in the case of Trump’s former national security adviser

Who is Emmet G. Sullivan, the judge standing between Flynn and exoneration, punishment or a pardon?

Court asks retired judge to oppose Justice Dept. effort to drop Flynn case

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