Michael Flynn cannot immediately force a federal judge to agree to drop criminal charges against the former national security adviser, a full panel of the U.S. Court of Appeals for the D.C. Circuit court ruled 8-2 on Monday.
The ruling means that U.S. District Judge Emmet Sullivan for the District of Columbia can proceed in examining why the Justice Department took the unprecedented step of dropping its criminal case against Flynn, after Flynn had pleaded guilty and then sought to withdraw his plea.
In its opinion, the D.C. Circuit said that Flynn’s request for an intervention came prematurely, because Sullivan had not yet ruled on the DOJ motion to dismiss Flynn’s case.
“Petitioner has not cited any case in which our Court, or any court, issued the writ to compel a district court to decide an undecided motion in a particular way—i.e., when the district court might yet decide the motion in that way on its own,” the opinion said. The majority noted that its decision Monday did not foreclose Flynn from seeking another appeals court intervention — known as a “writ of mandamus” — later on in the proceedings.
But for now, Flynn would suffer no “extraordinary harm,” according to the D.C. Circuit, by waiting until Sullivan formally acted on the dismissal request, at which point he could appeal a hypothetical ruling denying the dismissal.
The fallout from the Justice Department’s May decision to walk away from Flynn’s prosecution has been extraordinary and unprecedented. Rather than immediately grant the DOJ dismissal request, Sullivan indicated that he would be considering the advice of outside parties on what he should do next and had even asked for a retired judge to file so-called “friend of the court” briefings opposing the DOJ request.
Sullivan had scheduled a hearing for mid-July to examine the DOJ’s dismissal request and the friend-of-the-court filings submitted to oppose it. But that plan was put off once Flynn successfully got the appeals court involved.
The latest appeals court order is a reversal of the intervention a three-judge appellate panel made in the case earlier this summer, when it commanded that Sullivan immediately dismiss that case. The full appeals court had already blocked that order, in an early indication that it was skeptical of the move to intervene in the district court proceedings at this time.
The two appeals court judges — both GOP appointees — who had initially ordered Flynn’s case dismissed dissented from Monday’s decision, while another GOP-appointed appellate judge, Thomas Griffith, filed a concurring opinion. Judge Greg Katsas, who previously worked in President Trump’s White House, did not participate in the decision.
In Monday’s opinion, the en banc court squarely rejected the panel’s rationale for ordering that Sullivan dismiss the case, while noting that it was planning to rehear the decision, regardless of Sullivan’s own request that the panel’s order be reviewed.
“[I]t is simply not the case that the Executive will be irreparably harmed by the procedures ordered by the District Court such that mandamus should issue to forestall them,” the full appeals court said.
The Justice Department had expressed fear that Sullivan would use the proceedings to elicit affidavits or other testimony that could expose how the Trump administration reached its decision to seek to drop charges against Flynn.
The appeals court said that “those harms are speculative and may never come to pass.”
Monday’s opinion also emphasized that Flynn and the DOJ had raised concerns to the appeals court about Sullivan’s handling of the case without first raising those issues to Sullivan himself.
It is not immediately clear whether Flynn or the Justice Department will try to get the Supreme Court involved, a request that could further delay resolution of Flynn’s case.
At the oral arguments in front of the full appeals court earlier this month, Sullivan’s lawyer Beth Wilkinson played down the possibility that Sullivan would launch the kind of probing inquiry into the DOJ’s motives that the Department had warned against in the appellate proceedings. Wilkinson suggested that it was possible, had the mid-July hearing been allowed to go forward, that Sullivan would have dismissed the case as requested then.
The appeals court, meanwhile, indicated to Sullivan that he should not drag matters out any more than he had to.
“As the underlying criminal case resumes, in the District Court, we trust and expect the District Court to proceed with appropriate dispatch,” the D.C. Circuit said.
In his concurring opinion, Judge Griffith took aim at those who would interpret the decision as a victory for President Trump’s political opponents.
“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,” the judge wrote. “No doubt there will be some who will describe the court’s decision today in such terms, but they would be mistaken.”
Griffith added that, in deciding the case, the court had reached “the unexceptional yet important conclusion” that it should wait until Sullivan issued a ruling before considering the case. The Bush appointee added that “it would be highly unusual” if Sullivan denied the Justice Department’s motion to dismiss, adding that if that were to occur “General Flynn has multiple avenues of relief that he can pursue.”
Conservatives suggest Sullivan is biased
Judge Karen Henderson — one of the two appellate judges who had initially ordered Sullivan to dismiss the case — accused Sullivan of bias in her Monday dissent, saying that the case should have been transferred to another judge because Sullivan had demonstrated “‘extreme’ conduct” in the case, showing that he was unable “to render fair judgment.”
Henderson, who in her earlier ruling denied a Flynn request that the case be reassigned to another judge, wrote that Sullivan’s decision to seek the review of the full appeals court had convinced her that Sullivan had “disqualified himself.”
“I cannot think of an action more inimical to the appearance of an impartial arbiter,” Henderson wrote, arguing that Sullivan’s decision to follow up on the appeal made him a party to the case.
“He plainly appears to view himself as a ‘party,’” Henderson wrote, adding that “his attempted action removes any doubt that the appearance of impartiality required of all federal judges has been compromised beyond repair.”
The Bush Sr. appointee added that Sullivan’s statements throughout the case — including his expression of “disgust” for Flynn’s actions at the abortive December 2018 sentencing hearing — constituted evidence of bias.
The majority pushed back on Henderson, who was joined by Rao, for reversing course on Sullivan’s supposed bias — reversal that appeared “only” based on his request that the D.C. Circuit rehear the panel’s decision.
The majority noted that it was the appellate panel who had first invited Sullivan to participate in that mandamus proceedings, writing that “nothing about that participation created a reasonable impression of partiality, nor could it.”
Rao wrote her own opinion to lay out why she believed Flynn’s case already met the “extraordinary” circumstances warranting an appeals court intervention.
She accused the majority of taking a “a wait-and-see approach, hoping and hinting that the district judge will not take the actions he clearly states he will take.”
Her dissent whole-heartedly bought the version of events that Flynn — and to a lesser extent, the Justice Department — are trying to put forward to justify dropping the prosecution.
Flynn only “allegedly” made false statements about his 2016 Russian contacts to the FBI, which had no business interviewing him, since the agents “already possessed transcripts” and had gone against the preference of DOJ leadership that the White House be notified of the FBI’s plans to interview Flynn.
Rao gave credence to the evidence the DOJ now says it “newly discovered” in explaining its dismissal request.
She went on to defend the Justice Department’s argument, now in the mandamus proceedings, that it would be irreparably harmed if it was subjected to Sullivan’s plans to examine its dismissal request.
“The harms are far from speculative, as the majority concludes, but instead are clearly laid out in the actions and representations of the district court,” Rao said.
Much of her ire was focused on the majority’s willingness to take Sullivan’s lawyer at her word, when she had minimized the likelihood that Sullivan would do additional fact-finding around the DOJ’s move to drop the case. She accused the majority of turning a blind eye to what Sullivan had put in written filings, in favor of what his lawyer had said at the oral arguments.
“By shutting its eyes to the irreparable harms and failing to pronounce as improper this probing inquisition, the majority emboldens the district court to make good on its pledge to superintend and fact check the Executive,” Rao wrote.
She warned that the executive branch will be stuck making “multiple” requests for the appeals court intervention to challenge “each separate intrusion during a process of factfinding.”
“Wishful waiting cannot forestall the irreparable harm to the Executive Branch,” Rao said.
She also nodded to the “numerous harms” that Flynn claims he was being subjected to due “ stemming from protracted litigation,” as Rao accused the majority of leaving Flynn to “twist in the wind while the district court pursues a prosecution without a prosecutor.”
This post has been updated.
Read the opinion here: