The fight over whether a federal judge can scrutinize the Justice Department’s reasons for wanting Michael Flynn’s case dismissed will continue — at least temporarily.
The full U.S. Court of Appeals for the D.C. Circuit on Friday put on hold an order that the judge immediately dismiss Flynn’s case.
The now-frozen order was issued by two GOP appointees on a three-judge appellate panel, after Flynn made an extraordinary request that the appeals court intervene in how his judge, U.S. District Judge Emmet Sullivan, was handling his case.
Bigger picture, the D.C. Circuit’s move on Friday means that the Justice Department won’t be able to drop just yet its case against the former national security adviser, who had pleaded guilty in 2017 to lying the the FBI about his Russian contacts.
The dispute over whether Sullivan has to go along with the DOJ dismissal request is virtually unprecedented. It represents the uncomfortable position the judiciary has found itself in as the Justice Department, under Attorney General Bill Barr, has bent in ways that favor allies of President Trump.
When the Justice Department made the bombshell announcement in May that it was now requesting Flynn’s case be dismissed, Sullivan held off on immediately granting the request. Instead he invited outside parties to brief him on the matter, and he appointed a retired judge to serve as a so-called friend of the court by opposing the dismissal request. A hearing on what he should do next had been scheduled for next week.
The appellate panel blocked those efforts late last month and, absent any action from a higher court, Sullivan would have had to dismiss the case by next week under the order. Sullivan on Thursday asked the full D.C. Circuit, which is made up of a majority Democratic-appointees, to review that appellate decision.
In its order Friday, the D.C. Circuit told Flynn to file within 10 days his response to Sullivan’s request that the full appeals court get involved. The D.C. Circuit also invited the Justice Department to weigh in within that time period.
Read the order below: