The federal judge presiding over the case of Lt. Gen. Michael Flynn, former adviser to President Donald Trump, has asked the District of Columbia appeals court to reconsider an earlier decision that ordered the judge to accept a motion to dismiss the case filed by the Department of Justice (DOJ) in May.
A lawyer for District Judge Emmet Sullivan asked in a July 9 petition for all 12 judges of the D.C. circuit court to review the order issued last month by a 3-judge panel of the court.
The lawyer, Beth Wilkinson, argued that the situation of the case hasn’t risen to the point of deserving the extraordinary intervention (Writ of Mandamus) the panel issued.
“It in fact marks a dramatic break from precedent that threatens the orderly administration of justice,” she said.
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 of the case uncovered documents suggesting the FBI questioned Flynn solely to elicit false statements from him.
A motion to dismiss usually marks the end of a case, but 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, 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 still hasn’t accepted the dismissal.
The mandamus is taking three weeks to go into effect, giving Sullivan time to appeal for the en banc, or full court, to review it.
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.”
Under the Constitution’s Article II, it’s the executive who decides whether to raise or drop charges.
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.
A majority of the 12 active circuit judges would have to agree to the en banc review. Seven of them were appointed by Democrat presidents. While judicial decisions don’t always break along party lines, the Flynn case carries with it broad political implications. Rao was appointed by Trump.
The court may also first ask Flynn and the DOJ for a response to the petition before deciding on it.
Flynn’s lawyer, former federal prosecutor Sidney Powell, didn’t immediately respond to a request for comment.
In the meantime, U.S. Attorney Jeffrey Jensen continues his review of the Flynn case on orders from Attorney General William Barr.
Just two days ago, Jensen handed over to Flynn 14 more pages of materials that, according to Powell, further exonerate Flynn “of any intent to deceive or knowing false statement.”
President Barack Obama and then-Vice President Joe Biden were personally involved in the Flynn case, according to January 2017 notes of Peter Strzok, then-FBI head of counterintelligence operations.