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Speaker 1: You're listening to Bloomberg Law with June Grassoe from Bloomberg Radio.

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Speaker 1: Former National Security Advisor Michael Flynn has escalated the already

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Speaker 1: intense legal battle over his guilty plea with an emergency

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Speaker 1: petition to the DC Federal Court of Appeals. Flynn is

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Speaker 1: asking the appeals court to drop the charges against him

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Speaker 1: and take the case away from federal Judge Emmett Sullivan.

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Speaker 1: It's another twist in a case that stunned the legal

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Speaker 1: world when the Justice Department decided to drop the charges

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Speaker 1: against Flynn after he pleaded guilty twice. Attorney General William

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Speaker 1: Barr explained the major reversal in a CBS News interview.

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Speaker 1: And I want to make sure that we restore confidence

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Speaker 1: in the system. There's only one standard of justice, uh,

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Speaker 1: and I believe that this case that justice in this

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Speaker 1: case requires dismissing the charges against General Flynn. Joining me

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Speaker 1: is Harold Crant, a professor at the Chicago Kent College

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Speaker 1: of Law. Michael Flynn is asking the appeals court to

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Speaker 1: take the case away from the district court judge in

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Speaker 1: the middle of a proceeding. Is this unprecedented or just unusual?

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Speaker 1: It's extremely unusual. We have a mechanism called a mandamus

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Speaker 1: which is designed in this context f the appellate court

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Speaker 1: to restrict the jurisdiction of the lower court, because the

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Speaker 1: theory is that lower court is acting outside of its jurisdiction,

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Speaker 1: That is, that the district Court has failed to dismiss

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Speaker 1: the case as a turn in general Borro and the

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Speaker 1: Justice Parliament had sought. But man Damous is only to

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Speaker 1: be afforded in a very limited context when there's an

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Speaker 1: indisputable right and at stake. Here is a rule of

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Speaker 1: criminal procedure which states that the district court has some

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Speaker 1: minimal discretion to determine whether to dismiss a case when

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Speaker 1: a prosecutors still requests. So the court has made that

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Speaker 1: determination yet, so in my view it's a premature man

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Speaker 1: damous petition. Flynn's team has to wait until the court

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Speaker 1: can make this very narrow decision under criminal rule of

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Speaker 1: procedure fort a about whether he should grant the Justice

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Speaker 1: Apartment request to dismiss the case. But the case and

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Speaker 1: even more bizarre than that, because there's also a potential

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Speaker 1: criminal contempt charge at stake here, even assigned from whether

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Speaker 1: Flynn lie to the FBI there's a whole another question

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Speaker 1: about whether Flynn lied to the court and therefore his

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Speaker 1: actions in front of Judge Sullivan constituted a criminal contempt

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Speaker 1: of court, and there should be no power in the

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Speaker 1: Court of Appeals to take that issue away from Judge Sullivan. So,

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Speaker 1: looking at it from a broad perspective, even if you

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Speaker 1: could say that the judge should have given up jurisdiction

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Speaker 1: and granted the the Department of Justice request to dismiss

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Speaker 1: the case against Flynn for lying to the FBI criminal contempt,

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Speaker 1: very different issue. That's in the hands of the court,

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Speaker 1: not in the hands of the Justice periment. So let's

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Speaker 1: go back a little bit and examine these different pieces. Now,

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Speaker 1: Flynn's lawyer said Judge Sullivan had exceeded his authority. I

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Speaker 1: take it you don't think that that's the case. I

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Speaker 1: think that's potentially the case. We don't know what Judge

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Speaker 1: Salvin is doing. He is simply considering now whether he

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Speaker 1: should retain jurisdiction over the line to the FBI charge

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Speaker 1: and the actual plea of guilt that Flynn entered if

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Speaker 1: he does decide to try to prosecute that. Despite what

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Speaker 1: the Justice Department said, I happen to agree with the

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Speaker 1: Justice partament that that would exceed his jurisdiction in this case.

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Speaker 1: I don't believe that Judge Salvian has any ability to

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Speaker 1: prosecute Flynn on his own. That's a centralized law enforcement judgment,

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Speaker 1: for better or worse, made by our chief prosecutor, who

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Speaker 1: in this case is William Borrow, the Justice part He

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Speaker 1: can be wrong, he can try to dismiss the case

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Speaker 1: for political reason, but under our system of government, that's

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Speaker 1: his call to make. But that's not the question that

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Speaker 1: might rest at the criminal contempt charge. If the judge

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Speaker 1: finds that Flynn waited the court's authority by law ing

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Speaker 1: to the court several times by not explaining why he

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Speaker 1: is now taking back his plea agreement, that might well

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Speaker 1: constitute a separate crime of criminal contempt of court. And

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Speaker 1: we have a long tradition that the court is in

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Speaker 1: charge of prosecuting that issue, not the Justice Department. What's

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Speaker 1: your take on the central issue here, Michael Flynn pleading

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Speaker 1: guilty and then trying to take it back. Certainly individuals

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Speaker 1: have walked back. Please before the question is why has

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Speaker 1: there been a new fact that has arisen? Has there

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Speaker 1: been some change in the law, and so there are

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Speaker 1: good reasons for why someone can walk back a plea.

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Speaker 1: In this case, there really no good reason to our

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Speaker 1: knowledge has surface. He has walked back the plea because

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Speaker 1: he thinks that with a favorable Justice Department friend, you

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Speaker 1: will not be prosecuted. And so obviously the Court is

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Speaker 1: concerned that, even if you not be prosecuted for a

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Speaker 1: line to the FBI, he lied to the Court. He

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Speaker 1: lied to the Court under oath twice. Therefore, in your

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Speaker 1: feared with the Sound Administration of Justice, Judge Sullivan has

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Speaker 1: appointed a former federal judge and federal prosecutor, John Gleason

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Speaker 1: to argue against Flynn's motion and also to weigh in

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Speaker 1: what you were just discussing, which is whether Flynn should

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Speaker 1: be held in criminal contempt for perjury. This is not unprecedented,

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Speaker 1: is it for a judge to appoint a special prosecutor

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Speaker 1: to look into a case. So when there's no party

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Speaker 1: willing to are able to represent one side of a controversy,

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Speaker 1: courts and the Supreme Court of the United States, as

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Speaker 1: well as lower courts will appoint someone to make sure

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Speaker 1: both sides of an argument are heard. This happens a

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Speaker 1: lot when, for instance, the executive branch may decide not

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Speaker 1: to defend the constitutionality of a statute, so a court

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Speaker 1: will appoint someone to argue that the statute is constitutional

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Speaker 1: despite what the executive branch says. So here, viewed the

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Speaker 1: most favorably possible, the court has said, Look, I have

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Speaker 1: a responsibility under rule for a to train whether to

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Speaker 1: accept the requestion the Justice Department. What are the arguments pro?

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Speaker 1: What are the arguments con? I need to appoint someone

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Speaker 1: to make sure that I hear the arguments on both sides.

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Speaker 1: So that is not unprecedented at all. And the extent

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Speaker 1: that Judge Gleeston is just giving arguments about whether or

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Speaker 1: not the or should dismiss the case, I think it's

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Speaker 1: entirely appropriate. Now, what about the argument from the Justice

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Speaker 1: Department that even if Flynn lied, his lies were not

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Speaker 1: material to any investigation. Is there any case to compare

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Speaker 1: that too? That the Justice Department going back three years

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Speaker 1: into an investigation and then just reversing course completely. Whether

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Speaker 1: or not the legal argument is sound, that the that

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Speaker 1: the law have to be material, it is certainly bizarre,

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Speaker 1: to say the least, that a public of justice would

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Speaker 1: come up with the legal theory so long after the fact.

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Speaker 1: Indeed is their own career prosecutors which continued the case

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Speaker 1: after the Moler investigation to make sure that there was

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Speaker 1: justice stunt. So there may be a close case about

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Speaker 1: whether the law was material. Uh, I happened to think

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Speaker 1: that it probably was. But even aside from the fact

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Speaker 1: there was plenty of time to for Flynn's lawyers to

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Speaker 1: raise that claim. Flynn's lawyers had every incentive to raise

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Speaker 1: that claim. They decided not to and decided to plead

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Speaker 1: because he's so clearly lied. Um, so it's really extraordinary

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Speaker 1: now for the de proper justice to you that legal

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Speaker 1: theory is an excuse to try to unravel the deal

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Speaker 1: and let Flynn walk home unblemished. In an interview with

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Speaker 1: CBS News, Attorney General Barr said he wants to restore

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Speaker 1: confidence in the system with his actions in the Flynn case.

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Speaker 1: Does it seem as if he's doing just the opposite.

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Speaker 1: You know, of course, if you are a friend of

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Speaker 1: the president, and if you're a friend of General Flynn,

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Speaker 1: then unraveling this case is instilling more faith in the administration.

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Speaker 1: But if you believe in an independent judiciary, the actions

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Speaker 1: of bar are deeply unsettling, UM and the emergency man

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Speaker 1: Damous petition is also unsettling because again, at a minimum,

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Speaker 1: there should be an independent assessment of whether Flynn committed

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Speaker 1: a contempt on the court by his lying, by his

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Speaker 1: failure to explain why he was lying, and then um

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Speaker 1: not really taking taking responsibility for lying under oath. This

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Speaker 1: echoes what happened in the Roger Stone case when four

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Speaker 1: prosecutors pulled out of the case when the Justice Department

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Speaker 1: did a complete reversal there as well. How does this

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Speaker 1: affect career prosecutors at the Justice Department who see their

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Speaker 1: work being questioned and undo on time and time again.

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Speaker 1: There's no question that there's been a politicization of the

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Speaker 1: Justice Department, and always has to be some politics involved,

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Speaker 1: But there's a demoralization of many attorneys who have basically

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Speaker 1: given their careers to serving the government, and there have

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Speaker 1: been many people who have left the government in the

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Speaker 1: last couple of years. Obviously, there are some on the

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Speaker 1: Trump administration who probably would harold that fact and severy

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Speaker 1: neat new blood people taking positions who are more in

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Speaker 1: tune with the administration. But I think there is something

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Speaker 1: in my mind since I did serve in the Justice Department.

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Speaker 1: That's very important about the idea of of having career

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Speaker 1: employees there who dominate, who don't make every decision, but

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Speaker 1: make many decisions that you can never before trust those

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Speaker 1: career lawyers where they're working for Democrats or Republicans to

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Speaker 1: try to salvage justice. Thanks for being on Bloomberg Law Hall.

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Speaker 1: That's Harold Trent, a professor at the Chicago Kent College

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Speaker 1: of Law. And a note. The DC Circuit Court of

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Speaker 1: Appeals has ordered Judge Sullivan to respond to Flynn's motion

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Speaker 1: to have the case thrown out within ten days. I'm

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Speaker 1: June Galzo, and this is Bloomberg