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Setback for Michael Flynn as appeals court denies request to toss his case immediately

The saga of Trump's former national security adviser, who pleaded guilty to lying to the FBI, is likely to drag on for months.
Sentencing Of Former National Security Adviser Michael Flynn
Former national security adviser Michael Flynn arrives at federal court in Washington on Dec. 18, 2018.Andrew Harrer / Bloomberg via Getty Images file

WASHINGTON — A federal appeals court Monday rejected an effort by former Trump national security adviser Michael Flynn to have his criminal case thrown out immediately.

By a vote of 8-2, the U.S. Circuit Court of Appeals for the District of Columbia rejected Flynn's motion for an order that would have directed the judge who handled the case to dismiss it. That sort of extraordinary order is available only when there's no other option, the court said.

U.S. District Judge Emmet Sullivan has yet to rule on whether to grant the government's motion, made in May, to dismiss the case. Once the judge rules, Flynn would have the option of launching an appeal if he loses, the appeals court said.

Monday's ruling also rejected Flynn's effort to have Sullivan thrown off the case and to bring in another judge to handle further proceedings. The court said Flynn failed to establish that the judge is unable to act impartially.

The decision means the case remains alive. Sullivan will likely schedule a hearing on whether dismissing the case, as Flynn and the Trump administration want, is in the public interest.

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 as a writ of mandamus, instead of waiting for Sullivan to rule.

Flynn's attorney, Sidney Powell, and the Trump administration had argued that the decision to bring or drop charges is exclusively the government's, so judges have very little authority to look behind the prosecution's decision.

Flynn twice pleaded guilty lying 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 weren't material to any open investigation and were therefore not a violation of the law.

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.