WASHINGTON — A lawyer for President Donald Trump’s former national security adviser Michael Flynn told U.S. District Judge Emmet Sullivan on Tuesday that she recently updated Trump on the case and asked him not to pardon her client.
Attorney Sidney Powell appeared reluctant to discuss her conversations with the president or the White House, saying she believed they were protected by executive privilege. But after persistent questioning from Sullivan, she acknowledged having spoken to the president within the last few weeks.
Flynn is one of half a dozen former Trump aides and advisers who were indicted as a result of the special counsel investigation on Russian election interference.
Tuesday’s hearing comes weeks after a federal appeals court ruled that Sullivan did not have to immediately dismiss the prosecution just because the Justice Department wants him to, and returned the case to the judge for future consideration.
The 8-2 ruling by the U.S. Court of Appeals for the D.C. Circuit, reversed a previous decision by a three-judge panel, in a long and politically fraught legal case of the former Army general.
At issue before the appeals court was whether Sullivan abused his powers when he did not immediately grant dismissal of the case against Flynn after the Justice Department decided to drop the prosecution. Instead, Sullivan appointed a third party, known as an amicus, to challenge the Justice Department’s motion and to determine if Flynn had committed perjury for claiming to be innocent of a crime to which he had earlier pleaded guilty.
Flynn’s attorneys also asked the appeals court to remove Sullivan from the case, arguing the judge’s actions showed his inability to be impartial.
A three-judge panel from the appeals court sided with Flynn in June, ruling that Sullivan’s actions were “unprecedented intrusions of individual liberty” and on the Justice Department’s prosecutorial powers.
The full appeals court, which granted Sullivan’s request to rehear the case, disagreed, saying judges have the authority to appoint third parties as they decide on rulings. In Sullivan’s case, his attorney has argued what the judge was simply doing what judges do: seeking to hear both sides before ruling on the motion to dismiss.
The appeals court said that Sullivan may ultimately dismiss the case and that concerns over “intrusive judicial proceedings” were “speculative.” The judges also said there’s no basis in removing Sullivan from the case, saying opinions or statements judges make while presiding on a case don’t indicate bias.
Powell has argued that because the Justice Department no longer wanted to prosecute Flynn, Sullivan’s only role is to promptly grant dismissal of the case. Instead, Sullivan appointed an amicus to “usurp” the role of prosecutors and has “so invested himself” for the purpose of prosecuting Flynn, Powell said during oral arguments in August.
Acting Solicitor General Jeff Wall said Sullivan cannot probe the Justice Department’s motives for dropping the prosecution of Flynn and doing so entrenches on executive power. Sullivan’s actions also have created an appearance that he can’t be impartial, Wall said.
Flynn pleaded guilty in 2017 to making false statements to the FBI about his communications with a former Russian ambassador. He later reversed course, claiming investigators entrapped him into making false statements. The Justice Department also reversed course and sought to dismiss the case, arguing that the interview during which Flynn made false statements was “unjustified.”