Judge Calls For Full Appeals Court Review Of Ruling Dropping Michael Flynn Charges

Court clash continues to rage over power of the executive branch in fight over booted national security adviser and his secret talks with Russian official.

U.S. District Judge Emmet Sullivan in a court petition Thursday demanded a rehearing of a controversial appeals court decision allowing the Justice Department to drop charges against Michael Flynn, who briefly served as President Donald Trump’s national security adviser.

In a 2-1 ruling last month, a panel of the U.S. Court of Appeals for the District of Columbia Circuit ordered Sullivan to terminate the case, even though Flynn had pleaded guilty — twice — to lying to the FBI about his private negotiations with a Russian diplomat shortly after Trump’s 2016 election.

Sullivan is now calling for a full hearing by all active judges on the appeals court, arguing that the three-member panel’s ruling was a “dramatic break from precedent” that “threatens to turn ordinary judicial process upside down.”

The Justice Department made the startling decision to drop charges against Flynn in May after Trump praised his former aide and claimed Flynn was set up by the FBI. Trump said Flynn had been treated “horribly” by “very bad people.”

But Sullivan refused to simply grant the request spearheaded by Attorney General William Barr, instead appointing a retired judge to argue why the charges shouldn’t be dropped.

Flynn’s attorneys appealed Sullivan’s action before he had made a final decision, claiming bias. Lawyers for Sullivan in response raised suspicions about the government’s motivation and said that ordering judges to “rubber stamp” moves by the executive branch threatens the “integrity of the judicial process.” 

D.C. Circuit Judge Neomi Rao, a Trump appointee, wrote the majority opinion for the appeals panel, saying that allowing Sullivan to examine the DOJ’s motivations “will result in specific harms to the exercise of the Executive Branch’s exclusive prosecutorial power.”