WASHINGTON — The legal fate of Trump’s former national security adviser Michael Flynn is up in the air again after a federal appeals court on Monday rejected an effort by Flynn and the Justice Department to force a judge to immediately dismiss his criminal case.
A majority of the US Court of Appeals for the DC Circuit found that it was premature to order US District Judge Emmet Sullivan to grant the government’s unusual request to drop the years-long prosecution against Flynn. Instead of dismissing the case right away, Sullivan had asked for briefing, scheduled a hearing, and appointed a former federal judge to present arguments against dismissing the case. Flynn and DOJ petitioned the DC Circuit to intervene and stop that inquiry.
In June, a three-judge panel of the DC Circuit sided with Flynn and the government in a 2-1 decision. The full court then took up the case, however, and in Monday’s opinion a majority of judges voted in favor of allowing Sullivan to actually rule first before stepping in.
Sullivan could still end up letting the government drop the case against Flynn, a point that the DC Circuit made in its ruling on Monday. Flynn pleaded guilty to lying to the FBI, but then changed course and tried to fight the prosecution; the Justice Department had defended its prosecution of Flynn until it, too, changed positions and asked to dismiss the case in May. Flynn hasn’t been sentenced yet.
“Petitioner has not cited any case in which our Court, or any court, issued the writ to compel a district court to decide an undecided motion in a particular way — i.e., when the district court might yet decide the motion in that way on its own,” the DC Circuit judges wrote in Monday’s opinion, using italics to emphasize that Sullivan should be allowed to rule first.
As a final option to try to get the case dismissed, Flynn and the Justice Department could petition the US Supreme Court to get involved. Flynn’s lawyer Sidney Powell and a DOJ spokesperson did not immediately return a request for comment.
In Monday’s opinion, the DC Circuit found that Sullivan’s decision to ask for briefing and to appoint an outside party — former federal judge John Gleeson — to present arguments against dismissal didn’t raise any separation of powers issues; judges had done similar things in the past, they noted. Any fear that Sullivan might go beyond the limits of his authority — ordering the government to present evidence, for instance — was just speculation until the judge took action, the DC Circuit concluded.
“Try as they might, neither Petitioner, nor the Government, nor the dissent has identified a single instance where any court of appeals has granted the writ to decide a trial court motion without first giving the district court an opportunity to make a decision,” the judges wrote. “We are aware of none.”
The court also refused to reassign the case to another judge, finding that Sullivan’s handling of the case didn’t show that he was biased against Flynn. The fact that Sullivan participated in the DC Circuit proceedings also didn’t mean he was disqualified from presiding over the case going forward, the court held.
Monday’s opinion was “per curiam,” which means it represented the views of a majority of the DC Circuit’s judges, but didn’t include a breakdown of how each judge voted or who authored the decision. However, only Judges Neomi Rao and Karen LeCraft Henderson — who had ruled in June in favor of forcing Sullivan to dismiss the case — wrote dissenting opinions.
Rao wrote that it was appropriate for the court to intervene in the case now “to prevent his judicial usurpation of the executive power and to correct the district court’s abuse or discretion.” Henderson wrote that she would have disqualified Sullivan from the case, finding that his “conduct patently draws his impartiality into question.”
Rao and Henderson are among the DC Circuit’s more conservative-leaning judges; Rao is one of Trump’s three appointees to the court and Henderson was nominated under President George H.W. Bush.
Judge Thomas Griffith, who was confirmed under President George W. Bush, sided with his Democrat-appointed colleagues in ruling against Flynn and the Justice Department. Griffith wrote a separate concurring opinion arguing it was wrong to see judges’ decisionmaking “as a cover for the exercise of raw political power” based on the party of the president who appointed them. He maintained that the questions raised in Flynn’s case about the judiciary’s authority to probe actions by the executive branch were ” far removed from the partisan skirmishes of the day” and part of a “long-running debate about the relative powers of the Executive and Judicial Branches.”
“In cases that attract public attention, it is common for pundits and politicians to frame their commentary in a way that reduces the judicial process to little more than a skirmish in a partisan battle,” Griffith wrote. “No doubt there will be some who will describe the court’s decision today in such terms, but they would be mistaken,” Griffith wrote.
Trump’s two other appointees to the DC Circuit didn’t participate in the case. Judge Greg Katsas, who had served in the White House counsel’s office before being confirmed to the bench, recused. Judge Justin Walker was confirmed to the court in June to replace Griffith, but Griffith won’t officially retire until Sept. 1.
Flynn’s case has been pending in court since December 2017, when he pleaded guilty to lying to the FBI about his contacts in late 2016 with the Russian ambassador to the United States at the time. He originally agreed to cooperate with special counsel Robert Mueller’s investigation into Russian interference in the 2016 election.
But by the summer of 2019, he’d brought on a new legal team and not only tried to withdraw his guilty plea, but also challenge the lawfulness of the prosecution and Mueller’s investigation. He embraced Trump’s attacks on the Russia investigation as politically motivated. Meanwhile, Attorney General Bill Barr fueled Flynn’s efforts by appointing a US attorney, Jeffrey Jensen, to review Flynn’s case early in 2020.
On May 7, the interim US attorney in Washington, Timothy Shea, filed a motion asking Sullivan to dismiss Flynn’s case, writing that based on evidence uncovered in Jensen’s investigation, the government was no longer persuaded that the January 2017 interview in which Flynn admitted lying to FBI agents “was conducted with a legitimate investigative basis.”
Trump has publicly backed Flynn’s effort to fight the prosecution. In response to the DC Circuit’s ruling in June ordering Sullivan to dismiss the case, Trump tweeted: “Great! Appeals Court Upholds Justice Departments Request To Drop Criminal Case Against General Michael Flynn!”