An appeals court added another layer of complexity to the already convoluted mess surrounding the Justice Department’s effort to drop the Michael Flynn case.
The U.S. Court of Appeals for the D.C. Circuit responded Thursday to Flynn’s request that it intervene in his judge’s handling of the matter. The appeals court ordered that the judge, U.S. District Judge Emmet Sullivan of D.C., respond within the next 10 days to Flynn’s request that he drop the case. The appeals court also invited the Justice Department to submit its own response.
That the judge himself is being asked to file the briefing with the appeals court is a remarkable development that speaks to the extraordinary situation that has been created by the Justice Department’s sudden reversal in its Flynn prosecution. Usually there would be a party opposing Flynn who could take up the mantle of explaining to the appeals court that it need not intervene at this point.
Flynn pleaded guilty in December 2017 to lying to the FBI, and even as Flynn tried to back out of that plea in recent months, the Justice Department vigorously defended its prosecution of him. That is until a few weeks ago when the Justice Department — after a several-month pressure campaign from President Trump and his allies — said it wanted to drop the case because it no longer believed Flynn’s false statements to the FBI were material to the 2016 Russia investigation.
Instead of immediately granting the dismissal, Flynn’s judge, U.S. District Judge Emmet Sullivan of D.C., appointed a retired judge to act as a so-called “amicus” (or “friend of the court”) to oppose the DOJ request and to brief Sullivan on whether he is legally obligated to drop the case. Sullivan also asked the court-appointed amicus, John Gleeson, to brief him on the potential that Flynn face contempt of court proceedings for perjury — a likely reference to the repeated occasions Flynn affirmed the guilty plea in court.
Earlier this week, Flynn filed a petition with the appeals court asking the court to reverse the invitation for the amicus briefing and to order Sullivan to dismiss the case. Flynn also wants the appeals court to reassign the case to another judge for all other district court proceedings.
Thursday’s order is asking for a response from Sullivan to only the dismissal request. The panel that issued it was Judge Karen Henderson, a George H.W. Bush appointee, Judge Robert Wilkins, an Obama appointee; and Judge Neomi Rao, an appointee of President Trump’s.
Read the order below: