The developments in Flynn's case "raise questions that any judge should take seriously," Sullivan of the DC District Court said in a filing with the US Court of Appeals for the District of Columbia Circuit.
Following Sullivan's argument, the Justice Department top brass and the Republican establishment made clear in their own court filings just how forcefully they would back Flynn and oppose the trial judge.
Sullivan's court filing is the first time the judge has explained his thinking since the Justice Department asked to dismiss Flynn's case and Sullivan hesitated, wanting to examine more legal questions around it.
Flynn this year has claimed he's innocent, after pleading guilty in late 2017 to lying to the FBI about his contacts with Russia and cooperating with special counsel Robert Mueller's investigation for a year. In recent weeks, Flynn has tried to circumvent Sullivan by asking for an appeal so his charge can be dismissed quickly. Flynn's case has reinvigorated President Donald Trump's insistence that the Russia investigation was unfair to him.
The Justice Department's shift to agree with Flynn in early May that he shouldn't be prosecuted piled onto a succession of out-of-the-ordinary turns in the case.
The Justice Department's decision to dismiss the case, which Attorney General William Barr has defended publicly, has led to weeks of intense criticism of department leadership and speculation from former prosecutors and even judges that Trump has swayed Barr's decision-making with his personal agenda.
"It is unusual for a criminal defendant to claim innocence and move to withdraw his guilty plea after repeatedly swearing under oath that he committed the crime. It is unprecedented for an Acting U.S. Attorney to contradict the solemn representations that career prosecutors made time and again, and undermine the district court's legal and factual findings, in moving on his own to dismiss the charge years after two different federal judges accepted the defendant's plea," Sullivan wrote on Monday.
Sullivan noted he could still hear from Flynn's previous defense lawyers, question Flynn under oath about his change of heart and assess his credibility.
Sullivan's brief on Monday also allowed the judge to openly question how Justice Department political appointees made the 180-degree turn on Flynn.
Sullivan digs into the details of the request to dismiss Flynn's case, signed only by then-acting DC US Attorney Timothy Shea minutes after Flynn's primary prosecutor resigned from the case.
"It was signed by the Acting U.S. Attorney alone, with no line prosecutors joining; it featured no affidavits or declarations supporting its many new factual allegations; it was not accompanied by a motion to vacate the government's prior, contrary filings and representations; it cited minimal legal authority in support of its view on materiality; and it did not mention the March 2017 statements regarding Mr. Flynn's work for Turkey that were relevant conduct for his guilty plea and included in his statement of offense, but were unrelated to his January 2017 FBI interview," Sullivan's brief said Monday.
He also raises questions about what to do with another statement Flynn made under oath, that he had omitted his 2016 lobbying work for Turkey on a Justice Department disclosure.
"For several years, the government represented to the district court, across multiple court filings and appearances, that Mr. Flynn was guilty of making materially false statements. As recently as January of this year, the government maintained those representations. And Mr. Flynn repeatedly affirmed his guilt, under oath and penalty of perjury, despite being given multiple opportunities to disclaim it. It was not until this year that Mr. Flynn, and then the government, told the district court that its finding of guilt should be reversed and that the government's prior solemn representations were legally and factually untrue," Sullivan wrote.
Test of judge's power
Sullivan argued that the case isn't ready yet for the appeals court's intervention. Instead, he's outlined why he should still control the case and what else he may do with it, such as by using a third-party appointee to examine questions.
Sullivan's fight with the appeals court has become a test of the power of the trial-level federal judge.
"Someone needs to fill the adversarial gap to ensure full consideration of the issues, and a former prosecutor and federal judge is well positioned to do so," Sullivan wrote on Monday, defending his appointment of former Judge John Gleeson to argue against the department's dismissal request and examine whether Flynn should be charged with perjury.
For the first time, Sullivan explained which contradicting statements Flynn made under oath that could prompt a perjury trial.
He told the appeals court about how Flynn signed a declaration under penalty of perjury that said he was pleading guilty for no other reason than he was guilty, that he was satisfied with the defense lawyers who helped him sign his plea deal, and that he intended to admit his guilt to Sullivan in 2018. Now, Flynn has changed his story on all these points, saying he was pressured into his plea deal and is innocent.
Sullivan filed his brief on Monday after the Circuit ordered it; he used a prominent Washington, DC, lawyer to write and file it on his behalf.
Justice Department wants case dismissed
The Justice Department argues to the appeals court that it alone has the ability to prosecute under the constitution, so Sullivan must dismiss the Flynn case at its request. Their pro-prosecution argument is in line with the department's recent moves to help Flynn and with Trump's wishes.
Sullivan, the department writes, wants to hold them to "judicial inquiry, scrutiny, oversight, and involvement. Under the Supreme Court's and this Court's precedents, it is clear and indisputable that the district court has no authority to embark on that course."
The Justice Department is asking the circuit court to force Sullivan into a dismissal.
They also argue that Flynn shouldn't be able to be tried for perjury. Flynn wasn't attempting to interfere improperly with judicial proceedings, they say.
"The record shows that petitioner -- like other defendants who enter pleas they later seek to withdraw -- pleaded guilty with the intent to resolve the allegations against him on the best terms he thought possible at the time," DOJ writes. "An intent to acquiesce in the prosecution's charges, even falsely, is not an intent to interfere with judicial proceedings themselves for purposes of contempt."
Former Mueller prosecutor-turned-foreign lobbying division head Brandon Van Grack didn't sign DOJ's brief on Monday, nor did anyone else from the national security division -- which played a major role in the Flynn case for most of its lifespan. Instead, DOJ's brief came from the solicitor general's office, DOJ's criminal division and the DC US Attorney's Office. St. Louis US Attorney Jeffrey Jensen, who reviewed Flynn's case at Barr's request, also did not sign the filing.
Republican lawmakers back Flynn
Congressional Republicans are lining up in support of Flynn, with 11 House GOP lawmakers saying Sullivan can no longer be impartial in the case.
"Judge Sullivan's orders in this case gravely endanger at least the public appearance of his impartiality," the House members wrote to the appeals court.
"Judge Sullivan's orders in this case, like his public statements (such as his inquiry as to why General Flynn was not charged with 'treason') eliminate, at a minimum, the appearance of his impartiality. Those orders should be reversed. This matter should be assigned to a trial court judge who is, and who appears to be, a neutral decisor between the parties to this case."
The 11 House members on the brief against Sullivan on Monday are Reps. Louie Gohmert, Andy Biggs, Mike Johnson, Bill Flores, Jody Hice, Paul Gosar, Ted Budd, Andy Harris, Ron Wright, Ralph Norman and W. Gregory Steube.
The case has drawn the attention of scores of outsiders in addition to those Republican House members. Sixteen Republican state attorneys general and the former Reagan-era Attorney General Ed Meese have also written in support of Flynn. On Sullivan's side, former Watergate prosecutors, two dozen former federal district judges and the New York City Bar Association have spoken up in court to defend the judge.
This story has been updated with responses from the Justice Department and GOP lawmakers.
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