The U.S. Court of Appeals for the District of Columbia Circuit heard arguments Friday on Michael Flynn’s request that the appeals court intervene in his judge’s handling of the case.
The appeals showed skepticism towards Flynn’s insistence that the intervention was needed now, as opposed to later on in the proceedings. However, two of the appellate judges on the panel showed sympathy to some of the arguments that the DOJ and Flynn are making on the merits, questioning the authority the district court has to hold up the dismissal of the case.
Flynn requested that the appeals court order the case dismissed after the district court judge, Emmet Sullivan, ordered additional, third party “friend of the court” briefing on the DOJ’s request that he dismiss the case, rather than granting the dismissal immediately. Sullivan has appointed a former judge and ex-prosecutor, John Gleeson, to oppose the government’s dismissal request, and he is holding a hearing on the matter next month.
The D.C. Circuit seemed resistant to the idea that it should intervene now, rather than let the next month of proceedings play out at the district court. However, two of the judges, both GOP appointees, appeared to show some discomfort with how Sullivan has handled the case. Judge Karen Henderson suggested that Sullivan may have appointed an “intemperate” amicus in Gleeson, though she did stress that doing so didn’t mean Sullivan wouldn’t ultimately grant the dismissal. Judge Naomi Rao meanwhile grilled Sullivan’s lawyer Beth Wilkinson on the role the amicus was supposed to be playing in the first place.
The Justice Department is supporting Flynn’s position, and Principal Deputy Attorney General Jeff Wall received tough questions about the claims he is making about why the appeals court should intervene now. Judge Robert Wilkins posed a particularly pointed hypothetical for the DOJ: whether a judge could hold off on dismissing a policy brutality case if the DOJ wanted it dismissed because it didn’t believe a white police officer should be held accountable for a use of force against a black victim. Wall said that the judge would have to grant the motion to dismiss in that scenario.
Read our live coverage of Friday’s oral arguments below.