A federal appeals court on Monday overwhelmingly rejected a bid by Michael Flynn, President Donald Trump’s first national security advisor, to force the prompt dismissal of the criminal case in which he had been convicted of lying to FBI agents.
In an 8-2 ruling, the appeals court judges indicated that Flynn’s request was premature, since U.S. District Court Judge Emmet Sullivan of Washington had not yet even ruled on the dismissal request by the Justice Department.
The decision by the U.S. Court of Appeals for the District of Columbia Circuit also said Flynn had failed to show that he had a clear right to have a different judge handle his case.
The ruling sends the case back for consideration by Sullivan. Sullivan could dismiss it, as requested, or reject that request and move toward sentencing Flynn. If he does not dismiss the case, his refusal is certain to be appealed.
“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,” wrote Judge Thomas Griffith in a concurring opinion with the majority ruling.
“That is a policy the federal courts have followed since the beginning of the Republic.” Griffith wrote.
A lawyer for Flynn and the Justice Department did not immediately respond to CNBC’s requests for comment on Monday’s ruling.
Flynn, a retired Army lieutenant general, pleaded guilty in December 2017 to lying to FBI agents about his conversations with Russia’s ambassador to the United States in the weeks leading up to Trump’s inauguration in January 2017.
He also agreed to cooperate with then-special counsel Robert Mueller’s investigation of Russian interference in the 2016 presidential election.
But after hiring a new lawyer — Sidney Powell — in 2019, Flynn began making legal efforts to undo his guilty plea. The Justice Department opposed those efforts until this spring, when in a stunning about-face, it asked Sullivan to toss out the case.
In a filing seeking the dismissal, the then-interim U.S. attorney for the District of Columbia, Timothy Shea, argued that the FBI’s interview of Flynn was not justified by a counterintelligence investigation and that his lies about what he said to a Russian diplomat were not “material” to that probe.
Instead of promptly granting that dismissal, Sullivan asked a lawyer unconnected to the case to argue to the judge against the Justice Department’s motion, and allowed outside parties to weigh in on the matter.
Flynn soon afterward asked the appeals court to compel Sullivan to sign off on the dismissal request.
Flynn also asked that Sullivan be removed. Flynn’s lawyers said Sullivan had overstepped his authority by allowing outside parties to make legal arguments in the case.
At a hearing this month, Powell said Sullivan has “discarded any semblance of the unbiased impartial adjudicator” he is expected to be.
Earlier this summer, a three-judge panel of the appeals court ruled in Flynn’s favor, saying the case had to be dismissed.
But Sullivan then asked that the entire line-up of judges on the appeals court rehear the case.
It agreed to do so. And in Monday’s decision, the court ruled in the judge’s favor, saying that he should have more time to weigh the question of whether to dismiss Flynn’s case.
The court found, on the question of Sullivan’s fairness in the case, that none of the judge’s actions that had been cited by Flynn comes close to meeting the “very high standard” of “conduct . . . so extreme as to display clear inability to render fair judgment.”
Judge Griffith, in his concurring opinion in the decision, wrote, “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.”
“The party affiliation of the President who appoints a judge becomes an explanation for the judge’s real reason for the disposition, and the legal reasoning employed is seen as a cover for the exercise of raw political power,” wrote Griffith, who was appointed to his seat by President George W. Bush.
“No doubt there will be some who will describe the court’s decision today in such terms, but they would be mistaken.”
The two judges who dissented in the opinion, Karen LeCraft Henderson and Neomi Rao, were appointed to their seats by Presidents George H.W. Bush and Trump, respectively.
Rao, in her dissent, wrote that, “In Flynn’s case, the prosecution no longer has a prosecutor,” given the statement by the Justice Department, which is an arm of the executive branch of government, that it wans to drop the case.
“Yet the case continues with district court proceedings aimed at uncovering the internal deliberations of the Department,” Rao wrote. “The majority gestures at the potential harms of such a judicial intrusion into the Executive Branch, but takes a wait-and-see approach, hoping and hinting that the district judge will not take the actions he clearly states he will take.”
She also wrote that while an order by the appeals court directing the dismissal would be “an extraordinary remedy, it is appropriate here to prevent this judicial usurpation of the executive power and to correct the district court’s abuse of discretion.”
Henderson wrote in her dissent that she believed that Sullivan’s “conduct patently
draws his impartiality into question,” pointing to Sullivan’s comments at Flynn plea hearing, where the judge “
the trial judge asked whether Flynn could be guilty of treason and noted his ‘disgust’ and ‘disdain’ for Flynn’s actions.”
Henderson wrote that the judge also should be disqualifice because he appealed the ruling of the three-judge panel that had ordered Flynn’s case dismissed.
— CNBC’s Tucker Higgins contributed to this report