The federal appeals court for the District of Columbia has put on hold its decision to order a lower court to accept the dismissal of the case against former Trump adviser Lt. Gen. Michael Flynn. The appeals court also ordered Flynn to respond to a request for rehearing filed by the district judge presiding over his case.
Flynn is to respond within 10 days, the appeals court said in a July 10 order, which also invited the Department of Justice (DOJ) to respond at its discretion.
“The Flynn defense team looks forward to filing our brief for the DC [appeals court],” Flynn’s lawyer, former federal prosecutor Sidney Powell, said in an email to The Epoch Times.
The order adds to a winding history of a case that the DOJ deemed over more than two months ago.
Beth Wilkinson, a lawyer for the district judge, Emmet Sullivan, asked the full DC court (en banc) to reconsider a decision issued by a 3-judge panel last month, which ordered Sullivan to accept the DOJ’s May 7 motion to dismiss its case against Flynn.
The appeals court has now paused the order before Sullivan’s rehearing petition is resolved.
A majority of the dozen active judges would have to agree to grant the petition. Seven of them were appointed by Democrat presidents. While judicial decisions don’t always break along party lines, the Flynn case has had broad political implications, particularly since the emergence of January 2017 notes indicating that both President Barack Obama and then-Vice President Joe Biden were personally involved in the case.
The order for a response signals there is at least some will among the judges to look into the petition.
“I don’t think an en banc petition is ever dismissed outright immediately,” commented appellate attorney John Reeves, former assistant attorney general of Missouri, in an email to The Epoch Times.
“If none of the judges think it’s worth serious consideration, they just let it sit, and after about 14 days it is automatically denied/dismissed without any vote. But if even one judge requests a poll, then all the judges have to look deeper into the matter and formally vote one way or the other on the matter.”
Flynn, former head of the Defense Intelligence Agency under the Obama administration and former national security adviser to President Donald Trump, pleaded guilty in 2017 to lying to the FBI.
In January, he moved to withdraw his plea. In May, the DOJ moved to dismiss the case after a review uncovered documents suggesting the FBI questioned Flynn solely to elicit false statements from him.
Sullivan took the unusual step of holding back his approval of the motion. Instead, he appointed an amicus curiae (friend of the court) to argue against the dismissal and set a hearing on the matter for July 16.
Backed by the DOJ, Flynn asked the appeals court for intervention (Writ of Mandamus), saying that Sullivan doesn’t have the authority to delay or question the DOJ’s motion in these circumstances.
On June 24 the appeals court ordered Sullivan to grant the dismissal.
Sullivan canceled the hearing in response, but hasn’t accepted the dismissal.
Mandamus takes by default three weeks to go into effect, giving Sullivan time to appeal for the en banc review.
Wilkinson has argued that the situation is not sufficiently extraordinary to require a mandamus because Sullivan has not rejected the dismissal yet and the order thus “threatens to expand mandamus beyond its properly circumscribed role.”
“All the district court has done is ensure adversarial briefing and an opportunity to ask questions about a pending motion,” she said.
Circuit Judge Neomi Rao, who authored the mandamus, emphasized that Sullivan appointed an amicus specifically to oppose the dismissal.
“In other words, the court has appointed one private citizen to argue that another citizen should be deprived of his liberty regardless of whether the Executive Branch is willing to pursue the charges,” she said.
She also noted that the amicus, former federal Judge John Gleeson, “had publicly advocated for a full adversarial process” and his appointment thus “demonstrated intent to scrutinize the reasoning and motives of the Department of Justice” which “constitute irreparable harms that cannot be remedied on appeal.”
She acknowledged that it “may sometimes be appropriate” for a judge to conduct a hearing before giving his leave to the government’s motion.
“However, a hearing cannot be used as an occasion to superintend the prosecution’s charging decisions,” Rao said.
Under the Constitution’s Article II, it’s the executive who decides whether to raise or drop charges.
In the meantime, U.S. Attorney Jeffrey Jensen continues his review of the Flynn case on January orders from Attorney General William Barr.
Three days ago, Jensen handed over to Flynn 14 more pages of materials that, according to Flynn’s lawyer, further exonerate Flynn “of any intent to deceive or knowing false statement.”
Update: The article has been updated with a response from Sidney Powell, attorney for Lt. Gen. Michael Flynn.