A federal judge can scrutinize the Justice Department’s decision to drop the criminal case against President Trump’s former national security adviser Michael Flynn, a federal appeals court in Washington ruled today, allowing the legal saga to continue.
The decision from the full U.S. Court of Appeals for the D.C. Circuit gives U.S. District Judge Emmet G. Sullivan the go-ahead to question prosecutors’ unusual move to dismiss Flynn’s case ahead of sentencing. The retired general twice pleaded guilty to lying to the FBI about his Russian contacts before Trump took office in 2017.
In an 8-to-2 ruling, the court denied Flynn’s request, backed by the Justice Department, to shut down Sullivan’s planned review and appointment of a retired federal judge to argue against the government’s position.
The decision by the full court reverses an earlier ruling by a three-judge panel of the same court that ordered Sullivan to immediately close the case.
Judge Thomas Griffith said it would be premature for the appeals court to intervene and force Sullivan’s hand before he had rendered a decision.
“Today we reach the unexceptional yet important conclusion that a court of appeals should stay its hand and allow the district court to finish its work rather than hear a challenge to a decision not yet made. That is a policy the federal courts have followed since the beginning of the Republic,” Griffith wrote in a statement concurring with the court’s unsigned per curiam opinion.
The court also rejected Flynn’s attempt to have his case reassigned to a different judge, finding “no basis for disqualifying” Sullivan.
Judges Karen Henderson and Neomi Rao, who sided with Flynn in the initial panel decision, dissented.
Henderson called for Sullivan’s removal from the case and said he had compromised his impartiality “beyond repair” by seeking review of the panel’s decision by the full court and hiring an attorney to represent him before the D.C. Circuit.
In May, Sullivan refused to immediately sign off on the Justice Department’s request to toss the case. Instead he tapped John Gleeson, a retired New York federal judge, to oppose the Justice Department.
Sullivan’s move prompted Flynn’s defense team to petition the D.C. Circuit to get involved midstream and force the judge’s hand. Sullivan hired his own lawyer to defend the court’s authority to investigate whether dismissing the case is in the public interest.
The extraordinary legal battle has raised unsettled questions about the power of the courts to check the executive branch. Federal rules require prosecutors to get permission from the presiding judge — or “leave of court” — to drop charges against a criminal defendant. Legal experts and former judges, however, disagree about the limits of Sullivan’s authority, and in practice, judges typically defer to prosecutors.
But there is nothing typical about this case.
Flynn was the highest-level Trump adviser convicted in special counsel Robert S. Mueller III’s Russia investigation. Instead of proceeding to sentencing, Attorney General William P. Barr ordered a review of the investigation into Flynn and his dealings with the Russian ambassador to the United States. He then moved to drop the long-running case, saying new evidence showed FBI agents did not have a valid reason to question Flynn, so any lies he told did not amount to a crime.
Flynn’s lawyers told the appeals court that Sullivan had no discretion to continue the case once the government decided to drop it. They also asked the court to reassign the case, accusing Sullivan of bias in his choice of Gleeson to argue the other side. The retired federal judge called the Justice Department’s attempt to undo the conviction politically motivated and “gross abuse of prosecutorial power.”
In her dissent, Henderson also criticized Sullivan for obtaining a lawyer, saying it added to the appearance that he views himself as a party in the case.
“If there was any doubt up to this point whether his conduct gives the appearance of partiality, that doubt is gone,” Henderson wrote, characterizing Sullivan’s decision to seek review by the full court as “ ‘extreme’ conduct.”
But the court majority backed Sullivan, saying the judge was not disqualified and had participated in the appeal at the D.C. Circuit’s invitation.
Nothing in Sullivan’s filing, the court said, “indicates bias in connection with the underlying criminal case. Indeed, any views the District Judge has conveyed in his briefing before us come from what he has learned in carrying out his judicial responsibilities.”
At oral argument, Jeffrey B. Wall, the acting solicitor general, also urged the court to block the judge’s review, saying Sullivan has no authority to dig into the administration’s motives for seeking to drop the case.
In response, Sullivan’s lawyer Beth Wilkinson told the court that it was premature and unprecedented to short circuit the judge’s review before Sullivan had an opportunity to render a decision.
Trump and his supporters have rallied behind Barr’s intervention and Flynn’s effort to undo his guilty plea. Supporters say Flynn never should have been interviewed by the FBI. But scores of former and current Justice Department employees say the move is a troubling example of the department bending to political pressure and the president’s interests.
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