In a fiery exchange during Tuesday’s hearing, former National Security Advisor Michael Flynn’s attorney Sidney Powell alleged that US District Court judge Emmet Sullivan had shown “bitter bias” in the case and was supposed to be reusing himself.
Powell’s remarks came during oral arguments before Sullivan about whether the judge should motion to dismiss Flynn’s criminal case.
Sullivan responded to Powell by stating that she was free to submit a written argument and should have done so months ago.
Powell also admitted Tuesday that she spoke to President Trump about Flynn̵
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“Did you speak to the President about this case?” Sullivan asked Powell. Powell initially tried to invoke the privilege of an executive, but when she was reminded that she was not a federal employee, she admitted to having done so.
“I can tell you that I spoke to the President once, once about this case, to give him the general status of the case,” Powell said.
When asked if she had made any inquiries, she said no, “except that he doesn’t make an apology.”
The federal prosecution filed a motion to dismiss the case in May after the FBI’s records revealed details of the bureau investigation that Flynn’s legal team alleged exonerated him. Rather than granting the petition for release, Sullivan appointed retired Judge John Gleeson as amicus curiae – or “friend of the court” – to argue against the Justice Department on both sides.
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Flynn previously pleaded guilty to making false statements to federal investigators regarding communications with a Russian ambassador. Since then, he has fought the charges, claiming the FBI acted inappropriately.
“The scope of the judicial investigation will be severely limited,” Sullivan said at the start of the hearing on Tuesday. Sullivan stated that he would not consider whether he had the authority to appoint Gleeson (it was “crystal clear”) or whether Flynn should be despised for perjury.
“The issues the court will focus on this morning and hear from an attorney are these,” Sullivan continued. “Whether the court has the discretion to review both denied and unqualified 48 (a) prosecutorial abuse requests, and whether that court should deny the government permission to dismiss the pending charges against Mr. Flynn.”
The Justice Department argued Tuesday that the case should be dismissed as there is no controversy between the parties.
Gleeson’s Amicus Curiae letter in June insisted that Sullivan not only had the authority to deny the government’s motion, but should do so. He claimed that the prosecution’s arguments “are riddled with inexplicable and elementary errors of law and fact” and should not justify the dismissal.
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The DOJ subsequently found that Article II of the Constitution does not give the court the power to review the executive’s exercise of the executive’s discretion. In their justification for dismissing the case, prosecutors alleged that Flynn’s false statements could not be proven material in an FBI investigation, particularly the investigation into Russian electoral influence and possible links to the Trump campaign.
Flynn’s attorneys have argued that Sullivan was not empowered to name Gleeson an amicus and that the court must grant release from existing records.
In response, Gleeson alleged that the DOJ was insincere in its reasoning for dismissing the case, arguing that the decision was politically motivated.
“There is strong evidence that the government’s motion to dismiss the case against Defendant Michael T. Flynn is based on mere pretext,” he wrote. “There is clear evidence that this motion reflects a corrupt and politically motivated favor that is not worthy of our judicial system.”
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During Tuesday’s rioting, prosecutors insisted that allegations of political motivation “just aren’t true” and that “there is no case” that should be brought against Flynn.
Flynn and his lawyers had tried to evade Sullivan and asked the DC Circuit Court of Appeals to issue a mandamus deed – in this case, a higher court order to a lower court or an official to perform their duties – to help Sullivan oblige to grant the dismissal. A three-judge panel granted Flynn’s motion and ordered Sullivan to dismiss the case. Sullivan appealed and a full DC Circuit Court review overturned the decision, ruling in Sullivan’s favor.
Fox News’ Jake Gibson, Bill Mears, Morgan Phillips and Brooke Singman contributed to this report.