Judge’s request may give new life to Flynn’s case

WASHINGTON — The legal saga of President Donald Trump’s former national security adviser, Michael Flynn, continued Thursday when a judge asked the appeals court here to revive his effort to scrutinize the Justice Department’s move to drop Flynn’s case.

The full U.S. Court of Appeals for the D.C. Circuit now will decide whether to take a second look at U.S. District Judge Emmet Sullivan’s plan to examine whether the government’s move to undo Flynn’s plea of guilty is in the public interest.

Sullivan’s request for a rehearing comes after a divided three-judge panel on June 24 ordered him to put an end to the case and said Sullivan was wrong to appoint a retired federal judge to argue against the government’s position.

In response, Sullivan’s attorneys told the court that while the panel majority’s opinion is couched as a fact-bound ruling, it marks a “dramatic break from precedent” that “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,” wrote Sullivan’s attorneys, led by Beth Wilkinson. “This court, if called upon, reviews those decisions — it does not preempt them.”

In May, Sullivan refused to grant the government’s request to end the criminal case against Flynn, who twice pleaded guilty to lying to federal agents about his contacts with Russia’s ambassador in Washington before Trump took office in 2017.

Instead, Sullivan tapped retired federal Judge John Gleeson to argue against the Justice Department’s request, prompting Flynn’s attorneys to take the unusual step of asking the appeals court to intervene midstream and accusing Sullivan of bias.

Sullivan was to hold a hearing next week to scrutinize the politically charged case testing the limits of the judiciary’s power to check the executive branch.

In ruling against Sullivan in late June, appellate Judge Neomi Rao, a recent Trump nominee, found “this is not the unusual case where a more searching inquiry is justified.”

But Judge Robert Wilkins disagreed, saying it was “unprecedented” for the court to shut down Sullivan’s review before he had rendered a decision.

Wilkins said the judge should have an opportunity to examine the Justice Department’s change.

Sullivan’s filing said the majority opinion was legally flawed for the reasons Wilkins cited.

Sullivan said it also was flawed because it granted the government relief — approval of its dismissal motion — even though only Flynn and not the Justice Department petitioned the appeals court.

Sullivan’s filing also said the majority relied on arguments never raised before the lower court.

Flynn was the highestlevel Trump adviser convicted in special counsel Robert Mueller’s Russia investigation. Instead of proceeding to sentencing, Attorney General William Barr ordered a review of the Flynn investigation.