Members of a federal appeals court signaled Tuesday that they will likely let a lower court judge decide whether to dismiss criminal charges against former Trump national security adviser Michael Flynn.
After nearly four hours of oral argument conducted by telephone conference call, a majority of the Court of Appeals for the District of Columbia seemed inclined to rule that District Court Judge Emmet Sullivan should be allowed to decide whether to grant the Justice Department's motion to dismiss the case.
If Sullivan declines to throw out the charges, Flynn could then pursue his appeals, a majority of the judges suggested. The issue for the appeals court was whether Flynn's lawyers jumped the gun by seeking a rarely granted form of appeals court relief, a type of order known known as a writ of mandamus, instead of waiting for Sullivan to rule.
"What self-respecting judge would act without asking why the government wants to drop the case?" asked Judge Nina Pillard of the appeals court. "Shouldn't the judge be able to consider, in light of the strongest evidence on both sides, why the case should be dismissed?"
Judge Thomas Griffith said trial judges have some discretion even when the government wants to drop a case. "The judge has to do some thinking about it. He's not just a rubber stamp," he said.
And several members of the court said judges should have authority to ask why the government decided to dismiss charges if, for example, evidence turned in some future case that a prosecutor took a bribe from the defendant.
But Flynn's lawyer, Sidney Powell, and acting U.S. Solicitor General Jeffrey Wall said because the decision to bring or drop charges is exclusively the government's, judges have very little authority to look behind the prosecution's decision.
"The government cannot be forced to bring a prosecution, regardless of its motive for not doing so, and it can't be forced to maintain it," Wall said. If there's evidence a prosecutor took a bribe to drop charges, the judge could refer that evidence to the Justice Department to investigate the prosecutor, he said.
But Sullivan "went through the guard rails, and he has to be reined back in," Powell said, because he appointed a retired judge to argue why the Flynn case should not be dismissed.
Flynn twice pleaded guilty to charges that he lied to FBI agents in January 2017 about his conversations with Russia's ambassador to the U.S., but the Justice Department told Sullivan In May that it wanted to abandon the prosecution and let Flynn off the hook. Attorney General William Barr decided that Flynn's false statements to the FBI were not material to any open investigation and were therefore not a violation of the law.
Wall said during Tuesday's hearing that Barr's decision was also based on information undercutting the prosecution that has not yet been made public.
Instead of simply granting the government's request, Sullivan appointed a former judge to argue that the charges should not be dismissed, so that he could hear both sides of the issue. He scheduled a hearing on whether dropping the case would be in the public interest.
But that hearing was never held. Flynn asked a panel of the appeals court for an order directing Sullivan to dismiss the charges, and by a 2-1 vote it said the judge had no option but to do so. Sullivan then asked the full appeals court to rehear the case.
Beth Wilkinson, a Washington lawyer representing Sullivan during Tuesday's hearing, said the judge hasn't done anything yet to merit an appeal.
"The judge has not asked any questions of the government or anyone else. No fact-finding has been requested," she said. After he reads the briefs, there may be little left to ask. "The parties' speculation and fears about what the district court might do are not a proper basis for mandamus."
If, as seems likely, the appeals court says it's up to the judge whether to dismiss the case, Flynn's legal saga is certain to drag on for several more months. If Sullivan decides not to drop the case, he would move on to sentencing. Flynn's lawyers would undoubtedly then go back to the appeals court for another round on whether the case should be dismissed, as the Justice Department has urged.
There's no deadline for the appeals court to issue its decision. It could take several months.