Appeals court will rehear case over Flynn charges

A federal appeals court will revisit an earlier decision ordering a district court judge to allow the Department of Justice (DOJ) to withdraw its criminal charges against former national security adviser Michael Flynn.

The D.C. Circuit Court of Appeals vacated the earlier decision in a brief order issued on Thursday, setting up a new round of arguments over the DOJ’s controversial move to withdraw its case against Flynn.

The full court will hear oral arguments on Aug. 11.

In a 2-1 ruling last month, a three-judge panel on the circuit court ordered District Court Judge Emmet Sullivan to grant the DOJ’s motion and suspend any further arguments on the move. Two Republican-appointed judges held the majority in the decision over a single Democratic-appointed judge’s dissent.

The DOJ had stunned court-watchers in May with its sudden reversal in the case, arguing that it no longer felt that it could prove beyond a reasonable doubt that Flynn had lied to the FBI about his communications with a Russian diplomat in late 2016, even though the former national security adviser had previously pleaded guilty.

Sullivan responded to the move by appointing an outside counsel to present a counterargument against the DOJ dropping its charges to help with his decisionmaking. Flynn’s lawyers filed a petition with the D.C. Circuit, asking the court to order Sullivan to grant the DOJ’s motion outright without any further briefing.

The panel agreed, arguing that Sullivan did not have the authority to extend the prosecution if the DOJ wanted to pull out.

“In this case, the district court’s actions will result in specific harms to the exercise of the Executive Branch’s exclusive prosecutorial power,” Judge Neomi Rao, who was appointed to the D.C. Circuit by President Trump, wrote in the majority opinion in June.

“If evidence comes to light calling into question the integrity or purpose of an underlying criminal investigation, the Executive Branch must have the authority to decide that further prosecution is not in the interest of justice.”

Sullivan earlier this month asked the full D.C. Circuit to rehear the case, setting up an unusual scenario with a federal judge appealing a higher court’s ruling as an active litigant.

Beth Wilkinson, an attorney representing Sullivan, declined to comment.

Earlier this year, Flynn pulled out of a plea agreement he had made with former special counsel Robert Mueller to cooperate with his investigation into Russian meddling in the 2016 election. The retired three-star Army general had been trying to retract his earlier guilty plea when the DOJ moved to drop its charges in May.

Both the DOJ and Flynn now contend that the FBI investigation that led to Flynn’s interrogation in early 2017 had been plagued with malfeasance.

In an oversight hearing before the House on Tuesday, Attorney General William Barr defended the move in response to angry Democrats who accused him of working to protect the president’s associates.

“I agree the president’s friends don’t deserve special breaks, but they also don’t deserve to be treated more harshly than other people and sometimes that is a different decision to make … but that is what rule of law is,” Barr told the House Judiciary Committee.

“We don’t think any of the U.S. attorneys in the department would have prosecuted this case, partly because of the behavior of the FBI but also because the evidence is not there to prove it beyond a reasonable doubt,” he added.

A larger panel of 10 D.C. Circuit judges will now decide whether Sullivan should be allowed to fully explore the DOJ’s unusual move.

Judge Gregory Katsas, whom Trump appointed to the D.C. Circuit in 2017, recused himself from the case. Katsas had previously served in the White House counsel’s office and worked on the president’s response to the Mueller investigation.

Updated at 1:32 p.m.