The dispute over the Department of Justice’s move to dismiss criminal charges against former Trump national security adviser Michael Flynn will get a rehearing by the entire District of Columbia Circuit Court of Appeals, the latest twist in the long-running legal drama that stemmed from the FBI’s investigation into possible collusion between the Trump campaign and Russia in 2016.
The order was issued Thursday by the court. Called an “en banc” hearing, all 11 judges on the appeals court will sit in on a rehash of arguments that were made before a three-judge panel in June, which led to a 2-1 ruling in favor of Flynn. The former Trump aide had requested the appeals court to order the judge in the case to approve of a Department of Justice (DOJ) motion to dismiss charges against him.
D.C. District Court Judge Emmet Sullivan, however, did not immediately grant the unusual request motion by the DOJ to drop the charges of lying to investigators after Flynn pleaded guilty. Flynn had sought to withdraw the guilty plea. Sullivan made his own unusual move of his own to appoint an “amicus curie” — Latin for “friend of the court” — to argue against the position taken by Flynn and the DOJ.
The three-judge panel eventually ordered Sullivan to dismiss the charges, citing broad “prosecutorial power” held by the executive branch. But Sullivan requested a rehearing, which on Thursday was granted. The hearing is slated for Tuesday, Aug 11 at 9:30 a.m.
Flynn’s legal team, opposing a rehearing, submitted a fiery brief to the court last week.
“Judge Sullivan’s stubborn disagreement with the Government’s decision to dismiss the case does not confer the right to contest it himself or through his amicus,” Flynn’s lawyers, including Sidney Powell, said. “His actions smack of vindictive animus against General Flynn and judicial overreach that have no place in America’s justice system. No precedent even suggests a ‘hearing’ on a substantial government motion to dismiss. Not one.”
Flynn’s lawyers added: “The umpire cannot force the teams to play extra innings after the game is over. He, the players, and the spectators need to go home and turn off the floodlights.”
But Sullivan’s legal team argued that it is allowable for judges to question the “reasoning and motives” of prosecutors when dismissing a case and that what is “extraordinary” here isn’t that he is asking for a hearing on the prosecutorial motion, but that the circuit court issued the writ of mandamus preventing him from doing so.
“Judicial decisions are supposed to be based on the record before the court, not speculation about what the future may hold. All the district court has done is ensure adversarial briefing and an opportunity to ask questions about a pending motion,” a brief for Sullivan said. “Considering both sides of an issue before ruling is not [beyond a judge’s authority]—it is sound judicial practice.”