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Michael Flynn’s Lawyers Ask Appellate Court to Remove Judge

Attorneys representing former National Security Advisor Michael Flynn asked a federal appellate court to remove the judge presiding over the case at the district court level and to immediately grant the Justice Department’s motion to dismiss the criminal charge against Flynn.

Flynn’s lead attorney, Sidney Powell, on Tuesday filed a petition for a writ of mandamus with the United States Court of Appeals for the District of Columbia claiming that U.S. District Judge Emmet Sullivan “disregarded the constitutional imperative” of a federal judge by failing to grant the DOJ’s request and by ordering former federal prosecutor John Gleeson to serve as “amicus curiae” to present arguments in opposition to the DOJ’s motion.

“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,” Powell wrote in the 34-page filing.

“Binding Supreme Court and Circuit precedent squarely foreclose the district court’s determination to continue the prosecution of General Flynn,” the filing says. “The district court order appointing an amicus is both unauthorized and bespeaks a disturbing lack of appreciation of the court’s limited role when confronted with a motion to dismiss by the Government in a criminal case.”

Powell also decried the appointment of Gleeson to “address whether the Court should issue an Order to Show Cause why Mr. Flynn should not be held in criminal contempt for perjury.” Team Flynn’s filing noted that Gleeson recently published an op-ed “excoriating the Department of Justice’s Motion to Dismiss as ‘smack[ing] of impropriety,’ of attempting to make the court ‘a party to corruption,’ and of ‘reek[ing] of improper political influence.’”

Powell reiterated the contention that the government withheld evidence during Flynn’s prosecution and further stated that the discovery of exculpatory evidence – also known as Brady material – is what caused the government to file the motion.

“There is much more information in the Government’s motion (and in the multiple defense motions that preceded it) that the Special Counsel failed to disclose to General Flynn or his lawyers, despite the district court’s standing Brady order and repeated denials that such evidence even existed,” Powell wrote. “All this information bears directly on the ‘materiality’ element of a section 1001 prosecution.”

“U.S. Attorney [Jeffrey] Jensen’s discovery of this Brady material led the Government to conclude that it ‘does not have a substantial federal interest in penalizing a defendant for a crime that it is not satisfied occurred and that it does not believe it can prove beyond a reasonable doubt,'” she added (citation omitted).

See the full filing below:

Flynn Petition (Filed) by Law&Crime on Scribd

[Image via Aaron P. Bernstein/Getty Images]

 

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.