Lawyers for retired Lt. Gen. Michael Flynn filed a lengthy motion with the federal court on Wednesday, calling for the disqualification of Judge Emmet Sullivan, who has presided over the case since 2017, due to alleged bias against the former Trump national security adviser.
The 40-page filing calling for Sullivan’s recusal, filed by former federal prosecutor and lead Flynn attorney Sidney Powell, argued that the judge’s “increasingly hostile and unprecedented words and deeds in what has become his own prosecution of General Flynn mandate his disqualification from further participation in these proceedings and the referral of his conduct to the D.C. Circuit Judicial Council” and that “the appearance of bias here is terrifying and mandates disqualification.” The motion comes a week after Flynn’s lawyers and the Justice Department appeared before Sullivan to argue for the case to be dismissed.
Attorney General William Barr appointed U.S. Attorney Jeffrey Jensen to review the Flynn case, after which a host of new documents deemed exculpatory by Flynn’s lawyers were discovered. The Justice Department told the district court in May “that continued prosecution of this case would not serve the interests of justice” as it sought to drop its case. Instead, Sullivan appointed retired New York Judge John Gleeson to present arguments in opposition to the Justice Department’s motion and to explore whether Flynn should be charged with perjury or contempt.
Flynn’s lawyers cited the federal rules governing recusal which state, in part, that a judge “shall disqualify himself … where he has a personal bias or prejudice concerning a party.” They also quoted from a D.C. Circuit Court ruling in a 2019 case involving the military judge presiding over the Guantanamo Bay hearings against Abd al Rahim Hussein Muhammed al Nashiri, arguing that “by the time of his failure to follow the mandamus of the D.C. Circuit panel and his decision with his own retained counsel to take the unprecedented and improper step of filing his petition for rehearing en banc” Sullivan had “cast an intolerable cloud of partiality over his subsequent judicial conduct” and “risked undermining the public’s confidence in the judicial process.”
“The circumstances of this case lead any reasonable observer to believe that the current judge has a personal interest in the outcome, is irreparably biased against General Flynn, and is actively litigating against him. 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 writ large,” Flynn’s lawyers argued. “The Constitution compels, and all statutory bases require (‘shall recuse’), that Judge Sullivan recuse himself from any further proceedings even if he has granted the motion to dismiss with prejudice.”
In August, acting Solicitor General Jeffrey Wall also argued before the D.C. Circuit Court of Appeals that the Justice Department had arrived at “the view that there is now at least a question about the appearance of impartiality.” He said the Justice Department now “reluctantly” believes that Sullivan might need to be removed because of “a level of investment in the proceedings that is problematic,” and the judge seems to have “prejudged” some of the questions in the case.
Flynn, a target of special counsel Robert Mueller’s Russia investigation, pleaded guilty in December 2017 to lying to FBI investigators about his December 2016 conversations with a Russian envoy. But after changing legal teams in the summer of 2019, Flynn claimed he was innocent and had been set up by the FBI, contended exculpatory evidence had been concealed, withdrew his guilty plea, and pushed for the case to be dismissed.
During a late September hearing, Powell said she had spoken with President Trump within the past few weeks to give him an “update” on her client’s case and claimed the only request she made was that he “not issue a pardon” to Flynn. Sullivan brought up “propriety” and “legal ethics” of a June 2019 letter that Powell had sent to Barr and Deputy Attorney General Jeffrey Rosen, asking for the Justice Department to look into the Flynn case and suggested that “it may well be that the bar will have to address that at some point.” But Hashim Mooppan, a counselor to the U.S. solicitor general, stressed that “the attorney general made his decision” to dismiss the Flynn case “based on the plea withdrawal and emerging evidence of FBI misconduct” and added that “it’s not apparent to me why it would be improper” for someone to send a letter to the attorney general.
Also, during that hearing, Powell objected to Sullivan appointing Gleeson and said that a “special prosecutor” had never been appointed like that before. Gleeson accused the Justice Department of trying to “scuttle a case simply because the defendant is a friend and ally of the president of the United States.” But Assistant U.S. Attorney Ken Kohl said that claims of politically motivated or corrupt intent were “not true” and called the motion to dismiss the case “the right call for the right reasons.” He argued that the launch of the Flynn investigation was likely politically motivated, and so dismissing the case was merely a “course correction.”
Documents declassified earlier this year indicate that former FBI agent Peter Strzok abruptly stopped the FBI from closing its investigation into Flynn in early January 2017 at the insistence of the FBI’s “seventh floor” after the bureau had uncovered “no derogatory information” on Flynn. Notes from Bill Priestap, the FBI’s former head of counterintelligence, show him asking, “What is our goal? Truth/Admission or to get him to lie, so we can prosecute him or get him fired?”
Newly released internal text messages sent by FBI analysts working on the case against the retired Flynn in 2016 and 2017 reveal doubt inside the investigation into Flynn, and the summary of a September 2020 interview with FBI agent William Barnett, the lead case agent on the Flynn case in 2016 and 2017, shows he believed the Flynn case should have been shut down.