The Justice Department filed its motion to dismiss the case against Flynn on May 7, but the federal judge presiding over the case has not yet acted on the request.
Michael Flynn, President Trump’s former national security adviser, is asking the federal appeals court in the District of Columbia to order a federal district court judge to grant a request from the Justice Department to dismiss its case against him and reassign the case to another judge for any future proceedings.
Flynn’s attorneys filed a petition for a writ of mandamus with the U. S. Court of Appeals for the District of Columbia Circuit on Tuesday that would force U. S. District Judge Emmet Sullivan to approve the Justice Department’s motion, which was filed May 7.
Sidney Powell, Flynn’s lawyer, wrote in the filing that the request from the Justice Department to drop the criminal case against him came after an internal review from U. S. Attorney Jeffrey Jensen, who was tapped by Attorney General William Barr to review the case earlier this year. That review, Powell said, “unearthed stunning evidence of government misconduct and General Flynn’s innocence.”
The Justice Department wrote in its motion to dismiss the case against Flynn that “continued prosecution of this case would not serve the interests of justice” and said the government had concluded the FBI’s January 2017 interview of Flynn was “untethered to, and unjustified by, the FBI’s counterintelligence investigation.” The government, the Justice Department added, “is not persuaded” that Flynn’s interview “was conducted with a legitimate investigative basis.”
In an exclusive interview with CBS News’ Catherine Herridge, Barr explained the department’s decision, saying, “we feel really that a crime cannot be established here because there was not, in our view, a legitimate investigation going on. They did not have a basis for a counterintelligence investigation against Flynn at that stage, based on a perfectly legitimate and appropriate call he made as a member of the transition.”
Sullivan has not yet ruled on the motion and has indicated he would not do so immediately. Last week, he selected former federal Judge John Gleeson from New York to file a brief mounting opposing arguments to the government’s change in position. The parties are due to argue in court on July 16.
Gleeson was also tasked with reviewing whether or not Flynn should be subject to a contempt hearing after previously pleading guilty under oath to lying to the FBI and later publicly touting his innocence.
