A federal appeals court rejected Michael Flynn’s bid to have his case dismissed at the request of the Justice Department, a ruling that now allows a judge to review the unusual abandonment of a prosecution in which the former Trump national security twice pleaded guilty to lying to the FBI, reported Law.Com.
In an 18-page opinion, the U.S. Court of Appeals for the D.C. Circuit found that Flynn had not demonstrated a need for an intervention preventing U.S. District Judge Emmet Sullivan of the District of Columbia from proceeding with an inquiry into the Justice Department’s retreat from the prosecution. The full D.C. Circuit also declined to assign the case to a new trial judge, ruling that Flynn had not “established a clear and indisputable right to reassignment.”
The ruling reversed an earlier decision by a divided three-judge D.C. Circuit panel that ordered Sullivan to grant the Justice Department’s request to walk away from the case. It came as one of the D.C. Circuit’s veteran members, Judge Thomas Griffith, was set to retire.
“Today we reach the unexceptional yet important conclusion that a court of appeals should stay its hand and allow the district court to finish its work rather than hear a challenge to a decision not yet made. That is a policy the federal courts have followed since the beginning of the Republic,” Griffith wrote.
Flynn had argued the trial judge, Sullivan, was out of bounds in setting up a hearing to explore the Barr Justice Department’s bid to dismiss the case. Flynn was represented by Sidney Powell, a former federal prosecutor.
Sullivan, represented by veteran trial lawyer Beth Wilkinson, argued that trial judges are not rubber stamps for the Justice Department. Prosecutors by law cannot on their own dismiss a criminal case. They need what is called “leave of court.”
Judges Karen LeCraft Henderson and Neomi Rao, who ordered Flynn’s case dismissed in a June panel ruling, dissented from Monday’s decision.
“From early on in this case, the trial judge has demonstrated a pattern of conduct that, taken together, raises serious concerns about the appearance of impartiality,” Henderson said in her dissent.
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