The federal judge that has been presiding over Michael Flynn’s case asked the full U.S. Court of Appeals for the D.C. Circuit to review the extraordinary order from an appellate panel last month that the judge dismiss Flynn’s case.
The request Thursday by U.S. District Judge Emmet Sullivan is an escalation of a high-stakes battle over his ability to air out evidence that the Justice Department had inappropriate reasons for wanting Flynn’s case dropped. That a judge is kicking the dispute to the full circuit court level makes the development all the more remarkable.
In his petition, Sullivan said that move by the appeals court panel to intervene at this point in the proceedings represented a “a dramatic break from precedent that threatens the orderly administration of justice.”
The Justice Department asked in May that Flynn’s case be dropped, claiming that it had learned new information about the Flynn prosecution that made it doubt the strength of its case against President Trump’s former National Security Advisor. That claim had been widely viewed with skepticism since Flynn had previously plead guilty to lying to the FBI and had affirmed that plea twice in court. The DOJ’s reversal in the case was one of several recent actions by Department, under Attorney General Bill Barr’s directive, that sought to walk back or undermine key prosecutions brought by special counsel Robert Mueller.
Instead of immediately granting the DOJ request that the Flynn case be dropped, Sullivan appointed a so-called amicus (or “friend of the court”) to oppose the DOJ’s request and to brief the judge on what he could consider doing next.
Flynn quickly challenged the move, using a rare procedural tactic seeking an appeals court intervention. In a 2-1 vote, the appellate panel last month said that Sullivan had exceeded his authority and was infringing on the executive branch’s power to decide which prosecutions to pursue and which to drop.
Now Sullivan is asking the D.C. Circuit to hear the dispute “en banc,” meaning that the entire circuit court would weigh in.
“Judicial decisions are supposed to be based on the record before the court, not speculation about what the future may hold,” Sullivan’s petition said. He defended the steps he’d taken in handling the matter so far, describing the approach as him considering “both sides of an issue before ruling.”
“Outside the panel opinion, those actions have not been considered inappropriate—much less an extreme separation-of-powers violation justifying mandamus,” Sullivan said.
Sullivan said that the panel erred by getting involved before Sullivan had formally ruled on whether to grant the motion to dismiss.
He argued that the panel had broken from several court precedents dictating when appeals courts should intervene in cases that are still at the district court level. The panel also ignored multiple D.C. Circuit decisions giving judges discretion to go beyond just rubber stamping dismissal requests, Sullivan claimed. He also critiqued the panel’s conclusion that an appointment of the amicus was inappropriate, because the panel “identified no authority questioning this common practice or suggesting that it is the exclusive province of appellate courts.”
The panel decision that Sullivan is challenging was authored by Judge Neomi Rao, a Trump appointee who has shown a willingness to adopt extreme positions in the President’s favor. Rao was joined by Judge Karen Henderson, a George H.W. Bush appointee who has also broken Trump’s way in previous highly political cases. Judge Robert Wilkins, an Obama appointee, dissented from their order that Sullivan immediately dismiss the case and that his move to appoint the amicus be reversed.
Now the question of whether the decision was correct is in front of the full D.C. Circuit bench, where Democratic appointees make up the majority of judges considering it.
Read the petition below: