A federal appeals court rejected Michael Flynn’s effort to force a judge to immediately dismiss the charges against him, overturning an earlier decision that would have allowed the Department of Justice (DOJ) to drop its case against the former national security adviser.
The D.C. Circuit Court of Appeals ruled 8-2 against Flynn’s petition for it to step in and force a district judge to grant the Justice Department’s motion to drop charges without holding a hearing on the issue.
The appeals court had agreed to rehear the case after a three-judge panel ordered the district court in June to dismiss the charges.
The circuit court also denied Flynn’s argument that the judge overseeing his case be forced to recuse himself. The former three-star general’s legal team had argued that Judge Emmet Sullivan acted improperly by appointing outside counsel to argue against the DOJ’s sudden decision to drop its case and by asking the full circuit court to revisit the earlier decision by a three-judge panel.
Flynn’s attorney did not immediately respond when asked for comment.
Unless Flynn’s lawyers appeal to the Supreme Court, Sullivan, who was appointed to the federal bench by former President Clinton, will be able to move forward with a hearing about the DOJ’s unusual reversal in the case, before deciding whether to allow the Trump administration to withdraw its charges against the president’s former close aide.
The majority in Monday’s decision said that Flynn had failed to show that the appeals court needed to step in and force Sullivan’s hand in the matter, but noted that President Trump’s former adviser could easily appeal any ruling the judge issues.
An attorney representing Sullivan declined to comment.
Flynn had pleaded guilty in 2017 to lying to the FBI about his conversations with the Russian ambassador to the U.S. and agreed to cooperate with the special counsel’s investigation into Russian interference in the 2016 election.
In the past year, however, he backed out of the plea agreement, hired a firebrand conservative lawyer and disavowed his guilty plea, moving to fight the charges instead.
Before he could proceed with changing his plea, the DOJ decided in May to move to drop its case, saying it no longer had faith in the FBI investigation that led to Flynn’s interrogation in early 2017.
Sullivan responded by appointing the outside counsel to present a counter-argument and setting a briefing schedule for the parties to weigh in on how he should rule.
Before the process could move forward, Flynn petitioned the D.C. Circuit to intervene and preemptively force Sullivan to dismiss the charges, arguing that the judge was infringing on the DOJ’s sole authority to prosecute criminal cases.
A panel of three circuit court judges ruled 2-1 to grant Flynn’s petition. The two judges comprising the panel majority, who were both appointed by Republican presidents, were the only dissenters from Monday’s decision by the full court.
Judge Neomi Rao, who was appointed by Trump, wrote in her dissent that Sullivan’s effort to hold arguments on the DOJ’s move is an unconstitutional check on the executive branch’s prosecution powers.
“By allowing the district court to scrutinize ‘the reasoning and motives’ of the Department of Justice, the majority ducks our obligation to correct judicial usurpations of executive power and leaves Flynn to twist in the wind while the district court pursues a prosecution without a prosecutor,” Rao wrote.
— Updated at 1:32 p.m.