Politics|Appeals Court Weighs Whether to Permit Inquiry Into Flynn Case Dismissal
WASHINGTON — A Justice Department lawyer urged an appeals court on Tuesday to block a judge from scrutinizing its decision to drop the prosecution of President Trump’s former national security adviser Michael T. Flynn, arguing that the “spectacle” of examining its motives in a public hearing would damage the executive branch.
But a lawyer for the judge overseeing the case, Emmet G. Sullivan, appeared to walk back expectations that he would engage in a searching inquiry about what lay behind the decision to drop the charge against Mr. Flynn, suggesting that he did not have a basis to conduct extensive fact-finding and that he might limit a hearing to mainly discussing legal issues.
Those were two takeaways from nearly four hours of oral arguments before the full Court of Appeals for the District of Columbia Circuit. It was the latest chapter in a twisting legal and political saga over the case against Mr. Flynn, who has twice pleaded guilty to lying to the F.B.I. about his conversations with a Russian ambassador in December 2016.
In May, the department moved to drop the case. Its stated rationale has shifted across several filings, but centers on the idea that Mr. Flynn’s lies were not material to any legitimate investigation and that the F.B.I.’s aggression in questioning him might give a jury a reason to acquit him. That stance dovetails with Attorney General William P. Barr’s disdain for the Trump-Russia inquiry.
The case has since been consumed in a legal fight over whether Judge Sullivan had no choice but to dismiss it since the Justice Department no longer wants to pursue it, or whether the federal rules of criminal procedure empower him to scrutinize whether Mr. Barr sought to drop it for illegitimate reasons and — if Judge Sullivan were to decide that was the case — whether he could instead sentence Mr. Flynn anyway.
Judge Sullivan appointed John Gleeson, a retired federal judge who had criticized Mr. Barr’s move in a Washington Post opinion column, to provide arguments critiquing it. Mr. Gleeson filed a scathing brief contending that prosecutors’ stated rationale made no sense and must be cover for a corrupt and politically motivated decision. The department has denied that accusation.
Judge Sullivan had scheduled a hearing to discuss the issue when the process was derailed by a surprise decision by a three-judge panel on the appeals court in June. It voted 2 to 1 to grant a request by Mr. Flynn’s lawyer, Sidney Powell, that the appeals court immediately order Judge Sullivan to dismiss the case without review.
But the two judges in the majority on that panel — Neomi Rao and Karen L. Henderson — have shown more willingness than their colleagues to interpret the law in Mr. Trump’s favor. Last month, the full court voted to erase the panel decision and rehear the issue, an intervention that suggests it is likely to let Judge Sullivan hold the hearing after all.
Questions from the judges on Tuesday further bolstered the impression that a majority of them on the full court appear likely to reject Ms. Powell’s request. But even so, it was less clear that letting the process play out would force the Justice Department to divulge significant new information about what led to Mr. Barr’s decision.
Judge Sullivan’s lawyer, Beth Wilkinson, has argued that he has the authority to explore whether the proposed dismissal served “due and legitimate prosecutorial interests” or was instead contrary to the public interest, suggesting that he needed to examine “the facts and circumstances.” The Trump administration has reacted with alarm to the notion of an intrusive factual inquiry requiring it to show what went into Mr. Barr’s move to dismiss the charge beyond the rationale it has cited in public filings.
On Tuesday, Jeff Wall, the acting solicitor general, urged the court to again order the case dismissed immediately. But even if the court instead lets the judge proceed, Mr. Wall said, it should instruct him not to pry into what was behind the statements the Justice Department made in its court filings because, he argued, the constitutional system of separation of powers is “meant to guard against oversight and scrutiny of this core executive discretion.”
But while also arguing that the Justice Department did not have to explain its thinking, Mr. Wall suggested that Mr. Barr might have had a secret reason for dismissing the case.
“The attorney general, of course, sees this in a context of nonpublic information from other investigations,” he said, adding: “It may be possible that the attorney general had before him information that he was not able to share with the court. And so what we put in front of the court were the reasons we could, but may not be the whole picture available to the executive branch.”
On behalf of Judge Sullivan, Ms. Wilkinson argued against imposing any restrictions or instructions on what kind of questions he could ask at the hearing, assuming he is allowed to hold one. Among other things, she noted that because the written briefs are not complete, it is not clear what all the issues are.
But she also repeatedly emphasized that to date he has not ordered any steps that would require the submission of internal Justice Department documents or sworn declarations. And she noted that if he asked about internal deliberations at the hearing and Justice Department lawyers declined to answer, he might choose not to pursue the matter.
Ms. Wilkinson also argued that orders like the one Ms. Powell has requested — a so-called writ of mandamus — are supposed to be for extraordinary situations in which there is no other remedy. Here, if the normal process plays out, Judge Sullivan might decide to dismiss the case, she noted — or, if he decides not to do so, that ruling could then be appealed.
Ms. Powell argued, as she has before, that Judge Sullivan has no authority to second-guess the Justice Department’s decision to drop the case, and that it was improper for him to appoint Mr. Gleeson and schedule a hearing rather than immediately ending the matter. She also accused him of displaying bias against her client.