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Michael Flynn seeks order to force judge to dismiss his case

The development was another twist in the former national security adviser's legal saga.
Image: Former National Security Adviser Flynn departs after plea hearing at U.S. District Court in Washington
Former national security adviser Michael Flynn leaves U.S. District Court in Washington on Dec. 1, 2017.Jonathan Ernst / Reuters file

Former national security adviser Michael Flynn asked a federal appeals court late Tuesday for an order directing the judge handling his case to dismiss it, another twist in his legal saga.

Flynn's attorneys asked the U.S. Circuit Court of Appeals for the District of Columbia to order U.S. District Judge Emmet Sullivan to grant the Justice Department's motion, filed earlier this month, to dismiss the case. Instead of simply doing as the government asked, Sullivan appointed a retired federal judge to examine the government's justification for dropping the case and to look at whether Flynn should separately be found in contempt of court for his earlier guilty plea, which he has since asked to withdraw.

Once the government seeks to abandon a prosecution, his lawyers argued in their appeals court filing, the judge has virtually no choice but to accept the decision and "has no authority to adopt the role of the prosecutor." Sullivan's efforts to appoint the judge as a friend of court shows "a disturbing lack of appreciation of the court's limited role," they said.

The man Sullivan appointed, John Gleeson, who retired as a U.S. district judge in New York in 2016, said Tuesday that he intended to respond to the judge's order by June 10. Sullivan ordered the Justice Department and Flynn's lawyers to reply to that filing by June 17, and he scheduled oral arguments in his courtroom for July 16. He also invited other friend-of-the-court submissions from people or groups not directly involved in the case.

Flynn's lawyers told the appeals court that Sullivan had no authority to invite outside parties to weigh in. It was unclear Tuesday how Flynn's appeal would affect that schedule.

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It was the latest in an apparently unprecedented series of developments in Flynn's case. After he pleaded guilty in two separate hearings, he fired his lawyers, brought in new ones and asked to withdraw his guilty pleas. The judge has yet to rule on the request or to set a final date for sentencing.

In early May, the Justice Department abruptly notified Sullivan that it would no longer prosecute the case, having determined that even if Flynn lied to FBI agents in early 2017 about his phone calls with Russia's ambassador to the U.S., his lies were not "material" to any investigation and did not, therefore, violate the false statements law at the heart of his case.

Instead of granting the Justice Department's motion, Sullivan appointed Gleeson and invited others to submit their views about the government's decision.

There is no deadline for the appeals court to act on Flynn's latest move to have his case thrown out.