The federal appeals court in Washington on Aug. 31 rejected a request for intervention filed by former national security adviser Michael Flynn, sending the case back to the district judge who had set up an unprecedented procedure to determine whether he should approve the government's motion to dismiss the case.
The U.S. Court of Appeals for the District of Columbia Circuit denied the mandamus petition, arguing that Flynn hasn't exhausted other means of relief; two of the panel's 11 judges wrote a dissenting opinion.
A mandamus petition is a form of extraordinary relief that asks a higher court to issue an order to a lower court.
"Here, petitioner and the government have an adequate alternate means of relief," the opinion states. "The District Court could grant the motion, reject amicus’s arguments, and dismiss the case."
Flynn's legal team filed a petition with the D.C. circuit court in May, shortly after the district judge in his case appointed an "amicus curiae" (friend of the court) to provide arguments against the prosecution's motion to dismiss the case. The unprecedented step pitted the judge against the defendant and the prosecutor before an appeals court.
A three-judge panel sided with Flynn, but Judge Emmet Sullivan hired attorney Beth Wilkinson and asked the court's full 11-judge panel, or en banc, to rehear the case.
Circuit Court Judge Neomi Rao dissented and argued that Sullivan's "conduct patently draws his impartiality into question." Sullivan voided his impartiality by acting as a party in the case before the appeals court, Rao said.
"But his petition for en banc review with no legal support whatsoever [therefore] manifests, first, that he plainly appears to view himself as a 'party'; second, and more important, that his attempted action removes any doubt that the appearance of impartiality required of all federal judges has been compromised beyond repair," Rao wrote.
Flynn pleaded guilty to lying to the FBI in December 2017, but withdrew his plea prior to sentencing. The prosecutors later asked the judge to dismiss the case after discovering evidence that the bureau had no reason to conduct the interview during which Flynn allegedly lied. Sullivan responded to the motion by appointing a third-party judge to weigh in on the motion to dismiss to determine whether Flynn should be charged with perjury for walking back his plea.
The Flynn prosecution played a central part in shaping the false narrative that the Trump 2016 presidential campaign colluded with Russia to sway the 2016 election. After a 22-month investigation, special counsel Robert Mueller found no evidence of collusion, a finding recently affirmed by the Senate Select Committee on Intelligence.
In recent months, the Flynn case became a political bombshell after records disclosed as part of the case showed that President Barack Obama and Vice President Joe Biden were directly involved in discussions about the investigation during the transition period in early January 2017.
With the mandamus appeal rejected, Flynn and his prosecutors will have to present their arguments before Sullivan against the amicus curiae, who has already opined that the court should reject the prosecution's motion to dismiss the case.