WASHINGTON – Michael Flynn attorneys are seeking the recusal of U.S. District Judge Emmet Sullivan from his case, arguing the judge is “increasingly hostile” and “irreparably biased” against the former Army general.
“His continued presence in the case has become a national scandal undermining confidence in the impartiality of the federal judicial system and faith in the rule of law,” Flynn’s attorneys said in court papers Wednesday.
The move is the latest in the protracted and politically fraught prosecution of President Donald Trump’s former national security adviser. Flynn, who pleaded guilty to lying to the FBI about his contacts with a former Russian ambassador, is one of half a dozen former Trump aides and associates who were indicted as a result of the special counsel investigation on Russian election interference in 2016.
Sullivan has been presiding over the case since 2017. The motion asking for his recusal comes days after a heated court hearing during which Sullivan pressed Flynn’s attorney, Sidney Powell, on whether she had briefed the president on the case. Powell was initially reluctant to discuss her conversations with Trump and tried to invoke executive privilege, even though she isn’t a a White House employee. Powell later acknowledged that she updated Trump and requested that he not pardon Flynn.
Powell, who has repeatedly cast the prosecution of Flynn as part of a politically motivated conspiracy involving Obama administration officials, also said during the hearing that Sullivan should recuse himself. In court papers, Powell claimed that Sullivan’s “contempt and disdain” for Flynn was “palpable” during the hearing.
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Powell cited Sullivan’s searing comments to Flynn during a 2018 sentencing hearing. “Arguably, you sold your country out,” Sullivan told Flynn.
Flynn’s sentencing has since been postponed. He has since backtracked from his guilty plea, declaring his innocence and accusing the government of forcing him to admit to crimes he did not commit and then hiding evidence that would’ve exonerated him.
The Justice Department, under Attorney General William Barr, also reversed course and sought to dismiss the charges, arguing that the FBI interview during which Flynn made false statements was “unjustified.”
Instead of dismissing the case, Sullivan appointed a third party, known as an amicus, to challenge the Justice Department’s bid to drop the case and to examine whether Flynn had committed perjury for claiming to be innocent of a crime to which he had earlier pleaded guilty.
In court filings Wednesday, Powell cited Sullivan’s decision to appoint an amicus as evidence that the judge has become personally invested in prosecuting Flynn. But federal appeals court judges in Washington, D.C. have already rejected that argument after Flynn’s defense team asked them to force Sullivan to dismiss the case and to remove him from it.
The appeals court said in August that judges have the authority to appoint third parties as they decide on how to rule in cases. In Sullivan’s case, his attorney argued that 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 judicial overreach were “speculative.” It also said there’s no basis in removing Sullivan, saying opinions or statements judges make while presiding over a case don’t indicate bias.
Contributing: Kevin Johnson, USA TODAY and the Associated Press