A federal appeals court in Washington agreed Thursday to reconsider whether the judge handling the Michael Flynn case must dismiss the criminal charges against him, keeping Flynn's legal future in limbo.
The U.S. Court of Appeals for the District of Columbia granted Judge Emmet Sullivan's motion to rehear the case after a three-judge panel of the court in June ordered the judge to drop the charges. The appeals court's action wipes the slate clean, removing any legal effect of the panel's earlier ruling.
The court set oral argument for August 11 and said the parties should be prepared to address whether there are “no other adequate means to attain the relief desired," which strongly suggest at least some members of the full court believe the judge should be given a chance to decide whether to drop the charges before the appeals court gets involved.
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. When an agreement to cooperate with prosecutors fell apart in a separate case involving Flynn's former business partner, Flynn sought to withdraw his plea.
The Justice Department told Sullivan In May that it wanted to abandon the prosecution, after Attorney General William Barr decided that Flynn's false statements to the FBI were not material to any open investigation and therefore not a violation of the law. Instead of granting the government's request, Sullivan appointed a former judge to argue that the charges should not be dismissed and scheduled a hearing for mid-July on whether dropping the case would be in the public interest.
Flynn then asked the appeals court panel to order Sullivan to dismiss the charges, and by a 2-1 vote it said the judge had no option but to let the government drop them. There could be rare instances when a judge must consider whether such a request is in the public interest in order to see whether the government was concealing a desire to refile the charges later, the panel concluded, but this was not once of those cases.
Sullivan then asked the full appeals court to rehear the case. He said the panel acted too hastily, before he had even decided whether to let the government abandon the Flynn prosecution.
"Judicial decisions are supposed to be based on the record before the court, not speculation about what the future may hold," his lawyer, Beth Wilkinson, said in her legal filing.
Lawyers for Flynn and the Justice Department urged the full court not to take the case, arguing that a decision about whether to drop charges is exclusively the federal government's and cannot be second-guessed by the judge. Flynn's lawyers also said the judge had no right to ask for rehearing, since the only parties to the criminal case were the prosecutors and Flynn.
"Judge Sullivan, the supposed umpire, does not make it to first base. He has no injury" that would justify an appeal, they said.
The appeals court will now order a new round of written briefs and could schedule oral argument for later this year. In the meantime, the three-judge panel's ruling no longer has any legal effect, so Flynn's saga has at least several more months to go.
President Donald Trump has not ruled out a pardon for Flynn. In May he said it appeared Flynn would be exonerated.
"I'm not the judge, but I have a different type of power," the president said. "But I don't know that anybody would have to use that power."
Asked during a July 23 interview with radio host Sean Hannity if he would consider pardoning those convicted of crimes as a result of special counsel Robert Mueller's investigation, the president said, "I've looked at a lot of different people. They've been treated extremely unfairly, and I think I probably would, yes."