(Bloomberg) -- More than a dozen former Watergate prosecutors urged a federal appeals court to deny an emergency request from Michael Flynn to toss out the criminal case against him for lying to federal agents.
Flynn, President Donald Trump’s former national security adviser, this week asked the U.S. Court of Appeals in Washington to order the judge overseeing his case to grant the Justice Department’s May 7 request to drop its prosecution. U.S. District Judge Emmet Sullivan has not ruled on the request but has appointed an ex-federal judge to argue against dismissal and said he’d consider holding Flynn, who previously pleaded guilty in the case, in criminal contempt for perjury.
In a brief filed Friday, 16 prosecutors who served on the Justice Department’s Watergate task force during the scandal that brought down President Richard Nixon said Sullivan must be allowed to decide on the Justice Department’s request without interference.
U.S. law “requires district courts to exercise independent judgment when deciding a motion to dismiss federal charges,” the former prosecutors said. “Independent judgment is unquestionably informed by an adversary presentation in which not all parties are singing from the same hymnbook.”
On Thursday, the appeals court ordered Sullivan to respond to Flynn’s petition to have his case thrown out immediately.
Flynn’s lawyer, Sidney Powell, called their brief “politics at its worst -- infecting the Rule of Law.”
Flynn pleaded guilty twice to lying to FBI agents in a January 2017 interview about his conversations with the Russian ambassador during the early days of the bureau’s investigation into Russia’s election meddling. But under Attorney General William Barr, the Justice Department decided to walk away from the case after saying the agents did not have a proper investigative purpose in questioning Flynn and that his lies were not “material” to the Russia probe.
But the former prosecutors rejected that reasoning. “It defies comprehension to suggest that an incoming National Security Advisor, whom Russia knew to have misled both the Vice President and the Press Secretary about his conversations with the Russian Ambassador to the United States, should not have been interviewed by federal agents concerned about the possibility of potential Russian blackmail,” they said.
The former Watergate prosecutors all went on to notable careers in law and government. They include Richard Ben-Veniste, a member of the 9/11 Commission; Philip Lacovara, a former deputy U.S. solicitor general; Paul Michel, a former federal appeals court judge; and Jill Wine-Banks, who served as Army general counsel.
Flynn’s cause has been championed by Trump and many on the right, who have used it to suggest a conspiracy by former Obama administration officials to damage the president.
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