Judge asks appeals court to reconsider decision forcing him to drop Michael Flynn case

Michael Flynn, former U.S. national security advisor, arrives for a status hearing at federal court in Washington, D.C., U.S., on Tuesday, July 10, 2018.

Yuri Gripas | Bloomberg | Getty Images

The judge in Michael Flynn’s criminal case asked a federal appeals court Thursday to reconsider its ruling ordering him to dismiss the criminal case against the former national security advisor to President Donald Trump.

Judge Emmet Sullivan’s lawyer asked for a so-called en banc review of the decision of the three-judge appeals court panel, which would involve all active judges on the court to re-hear the case.

The lawyer for Sullivan argued in a lengthy court filing that the order to quickly grant the Department of Justice’s request to drop its prosecution of Flynn “threatens to turn ordinary judicial process upside down.”

“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,” said Sullivan’s lawyer, Beth Wilkinson, in the filing. 

The Justice Department and Flynn’s lawyer, Sidney Powell, did not immediately respond to requests for comment.

En banc reviews are rarely granted – but Flynn’s case has been unusual for years. 

Flynn, 61, had in 2017 pleaded guilty to lying to the FBI about his conversations in the weeks before Trump’s inauguration with Sergey Kislyak, then the Russian ambassador to the U.S. The charge was brought by a grand jury as part of then-special counsel Robert Mueller’s probe of Russian interference in the 2016 election.

Flynn was nearly sentenced in December 2018, but took Sullivan’s offer at the time to hold off until he had finished cooperating with law enforcement officials. In 2019, however, Flynn replaced his legal team and later asked to withdraw his guilty plea. 

In a stunning reversal, the Justice Department in May dropped its own prosecution of Flynn.

But rather than immediately grant the request to dismiss the charge, Sullivan appointed former federal judge John Gleeson to make arguments to him about why the case should not be tossed out. Sullivan also said he would consider arguments for or against the dismissal request from third parties not connected to the case.

Flynn’s lawyers went to the U.S. Court of Appeals for District of Columbia Circuit, requesting that it force the lower court to grant the DOJ’s request to dismiss the charge. 

In a 2-1 ruling, the appellate judges approved that request.

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