Attorney General William P. Barr moved to drop the criminal case against President Trump’s former national security adviser Michael Flynn because of “undisclosed” information, a Justice Department lawyer said Tuesday.
Appearing before the U.S. Court of Appeals for the District Columbia Circuit, Acting Solicitor General Jeffrey Wall said the decision to abandon the Flynn prosecution was prompted by a combination of public and secret evidence.
“The attorney general based that decision or that judgment on the basis of lots of information, some of it is public and fleshed out in the motion and some of it is not,” Mr. Wall told the court.
Mr. Wall said the non-public information has come from other investigations, but did not elaborate.
Mr. Wall appeared before 10 of the 11 judges on the court to argue for the immediate dismissal of the case against Flynn, who twice pleaded guilty to lying to the FBI. He later recanted and professed his innocence.
Judges on the appellate court remained skeptical, challenging Mr. Wall and Flynn attorney Sidney Powell to explain why the case should be dropped without further legal scrutiny.
The judges will either rule to allow the case to be terminated or allow U.S. District Judge Emmet Sullivan, who is overseeing the Flynn case, to hold additional hearings.
Judge Thomas Griffith said the trial judge appeared to be “educating” himself by holding a hearing on the Justice Department’s request to drop the case against Flynn, who briefly served as Mr. Trump’s first national security adviser.
“The judge has to do some thinking about it, right? The judge is not simply a rubber stamp,” he said.
In a surprise move, the Justice Department earlier this summer moved to abandon the prosecution. Judge Sullivan instead appointed a retired federal judge to argue against the Justice Department’s motion.
Flynn’s attorneys asked the appellate court to force Judge Sullivan to comply with the department’s request.
Last month, a majority of the judges on the appeals court vacated a ruling by a three-judge panel on the same court. The panel directed Judge Sullivan, who is overseeing Flynn’s criminal case, to drop the case.
The judges Tuesday asked if Judge Sullivan did anything improper by not immediately dismissing the case.
“It is the core of any judge’s job to assess cases using the best arguments that can be made on both sides,” said Judge Cornelia Pillard.
“And your position is that ‘no, he can’t both hear both sides of the law and he has to drop the case like a hot potato without adversary closing argument,’” Judge Pillard told Flynn’s attorney.
Mr. Wall, who argued on behalf of Flynn, said Judge Sullivan doesn’t have the authority to buck the Justice Department.
“Once the government decides to drop a prosecution, that’s it,” he said. “General Flynn can invoke a separation of powers to protect his liberty. This should go no further.”
Ms. Powell accused Judge Sullivan of “usurping” prosecutors and having the “now-glaring appearance of bias.”
Sign up for Daily Newsletters
