Full Appeals Court Agrees to Rehear Appeal in Flynn Case

July 30, 2020 Updated: July 30, 2020

The full panel of a federal circuit court in Washington vacated its own order on July 30 in an appeal filed by former national security adviser Michael Flynn and agreed to rehear arguments from all parties on Aug. 11.

The decision by the U.S. Court of Appeals for the District of Columbia Circuit is the latest in Flynn’s extraordinary legal saga, which has now pitted the defendant and his prosecutors against a federal judge in an impasse over whether the case should be dismissed.

A three-judge panel from the same court ruled in favor of Flynn on June 24, ordering District Judge Emmet Sullivan to approve the Department of Justice (DOJ) motion to dismiss the charges against Flynn.

However, Sullivan didn’t comply and requested that the full panel from the circuit court review the appeal.

The full panel, or “en banc,” review, suggests that the majority of the judges were at least on the fence about granting Flynn’s petition. 

Any decisions in the case will have wide-ranging political ramifications. The panel that reviewed Sullivan’s motion for an en banc review consisted of eight Democrat appointees and two Republican appointees. The 11th judge, Gregory Katsas, didn’t participate in the decision to take up the review.

In a summary of the legal matters in controversy, the court’s order asked that “the parties should be prepared to address whether there are ‘no other adequate means to attain the relief’ desired.”

Flynn had pleaded guilty in late 2017 to lying to the FBI, but moved to withdraw his plea in January this year. In May, the DOJ moved to drop its case against Flynn after conducting an internal review of the investigation and determining that the FBI had no basis to interview the former director of the Defense Intelligence Agency in the first place.

Instead of approving the DOJ’s motion, Sullivan took the extraordinary step of appointing an amicus curiae, or “friend of the court,” to argue against the government and to determine whether Flynn should be held in contempt for withdrawing his plea. 

Flynn’s attorneys filed an emergency petition for a writ of mandamus with the appeals court to order Sullivan to approve the motion to dismiss the case. The appeals court heard oral arguments from attorneys for Flynn, Sullivan, and the DOJ in June.

The special counsel team run by Robert Mueller prosecuted the case against Flynn as part of its Russia investigation. Mueller concluded that probe having found no evidence of collusion between the Trump campaign and Russia.

Both before and since Flynn’s guilty plea, the case has been plagued by lies, contradictions, and oddities. Attorney General William Barr ordered an internal review of the case, unearthing controversial evidence showing that Flynn’s case was discussed and coordinated at the highest levels of the Obama administration, including Obama himself. 

One document shows that President Barack Obama personally discussed the case with the director of the FBI and a top Justice Department official a day after investigators at the FBI intended to dismiss the case but were held off by management.

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