Michael Flynn Dismissal to Be Heard by Full Appeals Court

(Bloomberg) -- A U.S. appeals court will reconsider a ruling that would force a judge to dismiss the criminal case against former National Security Advisor Michael Flynn.

The decision to allow a rare “en banc” rehearing before a larger panel of judges revives a case that has raised questions about the Justice Department’s independence under President Donald Trump and the extent to which the judicial branch can question decisions of the executive.

The Washington-based appellate court set fresh arguments for Aug. 11.

The appeal centers on U.S. District Judge Emmet Sullivan, who triggered the unusual dispute when he refused to rubber-stamp the Justice Department’s surprise May 7 motion to dismiss the Flynn case. The judge said he should be allowed to probe whether the dismissal was a politically corrupt effort to help a Trump ally who pleaded guilty to lying to federal agents.

The appeals court said Thursday that Sullivan and the U.S. should be prepared to address at the hearing whether Flynn has any other “adequate” means to fight for dismissal. The so-called writ of mandamus Flynn is seeking -- which forces a judge to rule a certain way -- is usually granted when no other legal option is available. Sullivan has argued that Flynn can still appeal an eventual decision.

“Sullivan and perhaps a majority of the en banc D.C. circuit are saying that Flynn should not seek extraordinary relief from the appeals court before he attempts to persuade the district court to honor DOJ’s request to drop the case,” said Carl Tobias, a University of Richmond law professor. “In other words, seeking the extraordinary writ of mandamus is premature.”

Flynn’s lawyer, Sidney Powell, didn’t immediately respond to an email seeking comment. Sullivan’s lawyer, Washington litigator Beth Wilkinson, declined to comment.

Sullivan, who was appointed to the bench by Bill Clinton, named a former judge, John Gleeson, as a so-called friend of the court to argue against the government’s dismissal of the case. Gleeson issued a blistering June 10 brief that called the government’s move “corrupt.”

The Justice Department said it was dropping the case because it determined Flynn’s false statements weren’t “material” to the agents’ investigation into Russian interference in the 2016 election. It also said the FBI agents Flynn lied to essentially set him up to fail -- claims repeatedly echoed by Trump. Long after pleading guilty, Flynn sought to withdraw his plea and the Justice Department and Trump backed him.

The appeals court voted 2-1 to require Sullivan to dismiss the case on June 24, in a ruling by two Republican-appointed judges and one Democrat. The larger panel is likely to lean Democratic based on the makeup of the appeals court, setting up a possible Flynn loss and appeal to the U.S. Supreme Court.

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