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Michael Flynn and DOJ return to court to argue his case should be dismissed

FILE - In this Dec. 18, 2018, file photo, President Donald Trump's former National Security Advisor Michael Flynn arrives at federal court in Washington. A former federal judge appointed to review the Justice Department's motion to dismiss criminal charges against ex-national security Michael Flynn has found that the government's request should be denied because there is “clear evidence of a gross abuse of prosecutorial power.” Former U.S. District Judge John Gleeson says in a filing Wednesday that the government “has engaged in highly irregular conduct to benefit a political ally of the President.” (AP Photo/Carolyn Kaster, File)

(CNN) — Former national security adviser Michael Flynn, the Justice Department and US District Judge Emmet Sullivan meet for the first time in months Tuesday, as the judge weighs their attempts to exonerate the former top Trump official for lying to the FBI about conversations with Russia during the presidential transition.

But dismissing the politically charged case, as Flynn and the DOJ have sought, may not be that easy.

Sullivan has made clear he might consider sentencing Flynn for his lies, which he pleaded guilty to under oath almost three years ago. A third-party lawyer, former federal judge John Gleeson, will be in court as well to argue the legal path Sullivan could take to keep the case alive and sentence Flynn.

The hearing is set to begin at 11 a.m. ET over videoconference.

It’s the latest round — and potentially the final act — in a saga for Flynn in court that began with him flipping on President Donald Trump during the Mueller investigation into Russian interference in the 2016 election. At that time and in a second court hearing, Flynn admitted to misleading the FBI in the early days of the Trump administration.

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In the three years since, Flynn has narrowly avoiding being sentenced. He’s also become an emblem of the Trump’s persistent efforts to undermine the Russia investigation and a conduit for testing the separation of powers between judges and prosecutors. The Justice Department has argued Flynn never should have been questioned by the FBI in January 2017 and put in the position where he lied.

Sullivan, a sometimes unpredictable judge with a history of posing tough questions in heated cases, hasn’t indicated how he may approach the long-awaited hearing. Flynn had even tried to avoid the hearing altogether, by unsuccessfully appealing the judge’s authority to hold one.

But both Republican supporters and critics of Attorney General William Barr and Trump have hoped for some sort of comeuppance through the case. Tuesday’s hearing gives Sullivan an opening to press Flynn’s lawyers on his change of heart, probe Barr’s controversial decision to unravel the plea deal cut by Mueller’s team, and comment on the lawyering in the case in recent months.

Gleeson has argued Barr’s decision to drop the Flynn case is “corrupt and politically motivated” to help an adviser of the President, according to a filing in advance of the hearing. Flynn’s side has resorted to attacking the FBI agents and former prosecutors involved in his case in court and smearing the judge in their public commentary. While the Justice Department argues Flynn never should have been interviewed in the Trump White House, asserting its decision-making matters on whether Flynn should be prosecuted.

In the last major hearing where Flynn appeared before Sullivan, in late 2018, the judge grew so incensed with Flynn’s charge and legal approach he questioned whether Flynn could have been charged with treason. Prosecutors said no.

For several months, prosecutors and Flynn’s team have laden the court record with more than half a dozen rounds of documents prosecutors gathered from the FBI during a review of the case that Barr commissioned. Flynn’s lawyers, in turn, made those records public by filing them batch by batch, even after Sullivan ordered they should hold their fire. They say the documents help show his innocence, by highlighting how FBI officials wavered on whether he could face criminal charges before he was interviewed and lied.

At times, the arguments in support of Flynn have moved away from the facts of his case and into ad hominem attacks or broader right-wing grievances with the FBI for investigating Trump.

Some of the releases have included notes about the FBI wanting to close its investigation into Flynn in early 2017, just before agents learned of his calls with the then-Russian ambassador during the Trump transition and decided to interview him.

One of the notes showed a senior FBI official asking what the “goal” was in Flynn’s upcoming interview — “to get him to lie, so we can prosecute him or get him fired?” according to a handwritten meeting record that some experts say described a normal FBI approach to interviews.

“New documents just released reveal General Flynn was telling the truth, and the FBI knew it!” Trump tweeted in July after another round of evidence made public.

In another of the filings of evidence last week, the Justice Department or Michael Flynn’s defense team may have inserted a misleading date on a handwritten note of former FBI agent Peter Strzok, who had interviewed Flynn, a lawyer for Strzok told Sullivan on Monday, according to the court record.

Strzok’s lawyer, Aitan Goelman, flagged “handwritten notations (of dates) that Mr. Strzok did not write” on evidence Flynn sent to court recently after his team received it from the Justice Department related to his case. The changes — which add two dates in handwriting to the original Strzok notes — potentially would be a major breach of protocol if the change was intended to mislead the court.

The development on Monday added yet another twist in Flynn’s court record. It’s unknown if Sullivan will address the note issue in the hearing Tuesday.

Flynn’s team has argued in court that Flynn is innocent and was improperly investigated for his ties to Russia in a case pushed by Strzok and Obama-era officials. To add to their narrative, they’ve repeatedly filed FBI agent and leadership messages, meeting notes and other documents related to the case, especially attempting to show Strzok’s bias against Trump and Flynn. (The Justice Department’s inspector general found the improper comments Strzok made about Trump didn’t influence his work in the investigation.)

One of the Strzok meeting notes stemmed from a meeting on January 5, 2017, among top Obama administration officials that was recently made public but without a date. When Flynn’s team filed the handwritten notes in court last week, the document carried the date “1/4-5/2017.” That meeting and its date is central to a right-wing conspiracy theory regarding former President Barack Obama and Vice President Joe Biden’s alleged role in the Flynn investigation.

Barr has shot down accusations that Obama and Biden acted illegally or are even under investigation.

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