Flynn judge ordered to explain his refusal to dismiss case

Former National Security Adviser and retired U.S. Army Lt. Gen. Michael T. Flynn

The D.C. Circuit Court of Appeals has ordered the judge in the case against former Trump national security adviser Michael Flynn to explain his refusal to sign off on the Justice Department's motion to dismiss.

Flynn pleaded guilty to lying to the FBI during special counsel Robert Mueller's investigation of Democratic claims that the 2016 Trump campaign colluded with Russia.

But after bureau documents were unsealed showing the interview in question was without legal foundation, the Justice petitioned the district court to drop the case.

Judge Emmet Sullivan refused, instead appointing a known critic of President Trump to argue for keeping the case alive.

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The appeals court on Thursday ordered that "within 10 days of the date of this order the district judge file a response addressing petitioner's request that this court order the district judge to grant the government's motion to dismiss."

The government, according to the court, also "is invited to respond in its discretion within the same 10-day period."

The petition by Flynn's lawyers asked that Sullivan be taken off the case because of his "bias."

In his request to the appeals court, Flynn's lawyers argued: "The district judge’s latest actions – failing to grant the Government’s Motion to Dismiss, appointing a biased and highly-political amicus who has expressed hostility and disdain towards the Justice Department’s decision to dismiss the prosecution, and the promise to set a briefing schedule for widespread amicus participation in further proceedings – bespeaks a judge who is not only biased against Petitioner, but also revels in the notoriety he has created by failing to take the simple step of granting a motion he has no authority to deny."

The newly unsealed evidence confirmed Flynn's claim he was set up in a "perjury trap."

Flynn lawyer Sidney Powell, citing the Fokker Services case precedent, contends trial courts are not allowed to second-guess the government's "conclusion that additional prosecution or punishment would not serve the public interest."

She pointed out that the FBI interview that triggered the charges against Flynn was not supported by law. The agency already had a transcript of the telephone call at the center of the case with a Russian ambassador, about which it was asking questions.

Fox News reported Powell's request was an emergency writ of mandamus, an extraordinary remedy deemed appropriate when there has been a "usurpation of judicial power" that is "clear and indisputable."

Harvard Law emeritus professor Alan Dershowitz previously charged that Sullivan should be impeached, arguing judges have jurisdiction only for cases and controversies

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"There's no controversy here. Both sides agree this case should be dismissed," he said. "This judge has no power to do anything else. And if he asserts that power, he has violated the Constitution."

Sullivan had asked for friend-of-the-court briefs in the case while appointing lawyer John Gleeson, who has openly criticized the Trump administration, to argue against the DOJ's motion to dismiss.

Gleeson has asked for court hearings on the issue.

Flynn contends FBI agents threatened that if he didn't plead guilty, they would investigate his son.

Gleeson's opposition to Trump, Fox reported, raised "concerns that he was selected to improperly bolster Sullivan's efforts to keep the Flynn case alive even though both the government and defendant want it dismissed."

FBI agents, when they planned to interview Flynn, discussed trying "to get him to lie, so we can prosecute him or get him fired."