Former national security adviser Michael Flynn on Tuesday asked the DC Circuit Court of Appeals to step into his still-lingering criminal case, nearly two weeks after the Justice Department moved to dismiss the charge against him.
The move Tuesday afternoon came at roughly the same time that Judge Emmet Sullivan, who has overseen Flynn’s criminal case in district court, scheduled a hearing for July 16 on the controversial request.
Even after the Justice Department said two weeks ago it was dropping Flynn’s case, Sullivan hasn’t yet dismissed it. Instead, he appointed a third-party lawyer to present legal arguments against dismissing the case and to weigh whether Flynn could be tried for perjury for making conflicting statements under oath.
Sullivan appears to be weighing whether he must dismiss Flynn’s guilty plea at the Justice Department’s direction, or could sentence Flynn, and whether he should hold him in contempt of court.
Flynn’s lawyers say bringing in a third-party perspective was out of line, according to their appeals court filing on Tuesday.
The move by Flynn to go to the appeals court is an unusual one that could annoy Sullivan by challenging his authority, and played to a right-wing chorus that’s been calling Sullivan unfair during the last week.
Flynn is asking the appeals court to dismiss the lying charge against him, stop the independent attorney John Gleeson from reviewing the case and remove Sullivan from any more oversight of the case.
“The district judge’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,” the prepared court filing says.
The appeals court will weigh whether it has the authority to allow Flynn’s case to head into appeals at this stage, and whether Sullivan’s recent moves in the case are legally problematic, a high bar for Flynn to be quickly successful with an appeal.
Sullivan schedule
While they wait, Sullivan has a two-month plan for reviewing Flynn’s matter.
The judge gave Flynn and the Justice Department one week to ask him to reconsider the outside lawyer’s review.
Gleeson then will make his arguments and recommendations to the judge by June 10, and other outside lawyers may be able to weigh in on the case after then, Sullivan said on Tuesday.
Sullivan also put on the calendar in-person arguments for July 16.
Sullivan is often his most lively and harshest in person, when he speaks to lawyers and defendants directly about a case.
