The federal judge overseeing the criminal case against former national security adviser Michael Flynn has asked for a full appeals court review of the case after a panel of three judges ordered him to drop the case in June, as requested by the Justice Department.
On Thursday, D.C. District Judge Emmet Sullivan filed a formal request for an en banc review before all 12 of the judges on the D.C. Circuit Court of Appeals.
“The panel’s decision threatens to turn ordinary judicial process upside down,” the brief filed by Sullivan reads. “It is the district court’s job to consider and rule on pending motions, even ones that seem straightforward. This Court, if called upon, reviews those decisions—it does not preempt them. This case satisfies the requirements of Rule 35, and en banc review should be granted.”
The Justice Department moved to dismiss the case in May, asking Sullivan to drop the criminal charge despite Flynn’s guilty plea. Sullivan declined to immediately rule on the motion, indicating he would review the decision and appoint a retired judge as a “friend of the court” to argue against the government. Flynn filed an emergency appeal to the D.C. Circuit to force Sullivan to accept the motion and drop the charge.
One case that is likely to be raised again by Flynn’s legal team, as it was in the three-judge review, is Fokker Services, a 2016 case that was also decided by the D.C. Court of Appeals. The court found that under the separation of powers, charging decisions rest with the executive branch and sentencing falls to the judiciary.
Any decision by the full circuit court may still be appealed to the Supreme Court.
Read Sullivan’s brief to the D.C. Circuit Court of Appeals here:
Circuit Judge Neomi Rao, who wrote the opinion for the three-judge panel and is a Trump nominee, argued that forcing the Justice Department to explain its reasoning for seeking to drop the case would infringe on the authority of the executive branch. The panel ruled in Flynn’s favor 2 to 1.
Flynn pleaded guilty to lying to federal investigators in an interview about his conversations with the Russian ambassador before Mr. Trump took office. He was ousted as national security adviser just weeks into the Trump administration in 2017.
The Justice Department has sought to dismiss the charge, having “concluded that the interview of Mr. Flynn was untethered to, and unjustified by, the FBI’s counterintelligence investigation” and that “it is not persuaded that the January 24, 2017 interview was conducted with a legitimate investigative basis.”
“People sometimes plead to things that turn out not to be crimes,” Attorney General William Barr said in an interview with CBS News’ Catherine Herridge. “And the Department of Justice is not persuaded that this was material to any legitimate counterintelligence investigation. So it was not a crime.”
Catherine Herridge, Rob Legare, Stefan Becket and Melissa Quinn contributed reporting.
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