The full U.S. Court of Appeals for the D.C. Circuit will reconsider an order from a panel of its judges that sought to block Michael Flynn’s judge from probing the reasons the Justice Department wants Flynn’s case dropped.
The announcement of the so-called en banc hearing means that the remarkable dispute over the DOJ’s dismissal request will rage on for at least a few more weeks. And it will allow the full D.C. Circuit — often dubbed the second most powerful court in the country — to wade into the thorny issue of what judges can and can’t do in the face of evidence that the Department of Justice has suspect motivations for its prosecutorial decisions.
The D.C. Circuit will hear oral arguments on the matter on August 11. In the meantime, the order from a three-judge appellate panel that Flynn’s case immediately be dismissed has been reversed.
Flynn and his judge, U.S. District Judge Emmet Sullivan, have been engaged in an extraordinary battle over whether Sullivan has the authority to hold off on granting the DOJ request that Flynn’s case be dismissed.
The Justice Department announced it was dropping its prosecution — where Flynn had pleaded guilty to lying to the FBI about his Russia contacts — in May. Rather than immediately grant the request, Sullivan invited outside parties to weigh in on what he should do.
One of those so called “friends of the court” (or “amici”) is a retired judge who Sullivan appointed to oppose the dismissal request. The former judge, John Gleeson, has since advised Sullivan that it’s in his power to deny the request and that the DOJ engaged in prosecutorial misconduct in finding pretextual excuses for wanting Flynn’s case dropped.
The process Sullivan laid out for considering this advice was interrupted when Flynn asked the D.C. Circuit to intervene in Sullivan’s handling of the matter. By a 2-1 vote, a three judge panel sided with Flynn — who has been backed by the Justice Department in the dispute — and ordered Sullivan to dismiss the case, prompting Sullivan to turn to the full circuit court.
Such an intervention in a lower court’s proceedings is usually only granted in very rare circumstances. One of the arguments Sullivan has made is that it’s too early in the process for the appeals court to get involved, since Sullivan has not said one way or the other whether he will grant or deny the DOJ dismissal request.
In its order Thursday, the D.C. Circuit hinted that it was particularly interested in that argument.
“The parties should be prepared to address whether there are ‘no other adequate means to attain the relief’ desired,” the order said, citing a 2004 Supreme Court case the centered around whether an appeals court could intervene in a district court’s proceedings.
Two of the three judges on the appeals court panel that sided with Flynn were Republican appointees. The full D.C. appeals court bench is made up of Democratic appointees. One of the Republican appointees — a President Trump-nominated judge had previously worked in Trump’s White House — sat out of the decision to hear the dispute en banc.
Read the order below: