A federal appeals court appeared unlikely Friday to stop a judge from examining why the Justice Department sought to walk away from its prosecution of President Donald Trump's former national security adviser Michael Flynn.
During 90 minutes of argument by teleconference, at least two members of a three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia indicated that they were not inclined to grant a motion by Flynn's lawyers, who want an order directing District Court Judge Emmet Sullivan to let the government drop the case.
"I don't see why we don't observe regular order," said Judge Karen Henderson. "Why not hold this in abeyance and see what happens?"
Judge Robert Wilkins told Flynn's lawyer that if Sullivan doesn't let the government drop the case, "then you can come back here on appeal."
The Justice Department told Sullivan last month that it wanted to abandon the prosecution, after Attorney General William Barr determined that Flynn's false statements to the FBI were not material to any open investigation and therefore not a violation of the law. Sullivan appointed a former judge to argue the opposite point and scheduled a hearing for mid-July on whether dropping the case would be in the public interest.
Sidney Powell, a Texas lawyer representing Flynn, told the appeals panel Friday that Sullivan has no choice but to grant the Justice Department's motion.
"The court can't make the government prosecute the case," Powell said. She added that allowing the judge to go ahead with a hearing would require Flynn to incur additional legal fees, saying, "The toll it takes on a defendant is enormous."
The Justice Department's deputy solicitor general, Jeffrey Wall, said the judge cannot force the government to submit to "a fact-intensive examination of the prosecutor's actions" in a case which he said "is playing out in a politicized environment given the accusations of grave misconduct by the attorney general."
Wall was referring to a court filing Wednesday from John Gleeson, the friend of the court appointed by Judge Sullivan to argue why the case should not be dropped. Gleeson called the government's reasons for dropping the case "preposterous" and said without any firm legal basis, the only other reason must be Flynn's relationship with the president.
Calling Sullivan "an old hand and excellent trial judge," Judge Henderson asked, "He might say, 'I asked for advice, and I'm ignoring it.' Shouldn't he be allowed to do that?"
Beth Wilkinson, the lawyer appointed by Sullivan to represent him in Friday's hearing, said that because he hasn't ruled yet on the motion to drop the case, Flynn's request for an order telling him to do so is premature.
"There's no clear and indisputable reason to enter the fray now," Wilkinson said. Previous court rulings give trial judges the discretion to decide whether granting a prosecutor's motion to dismiss a case is in the public interest, she said.
If, as seems likely, the appeals court denies Flynn's motion, Sullivan will go ahead with a hearing July 16 on whether to let the government abandon the case. But if the appeals court grants Flynn's motion, Sullivan could appeal to the Supreme Court.
Trump appears to be following the case closely. Gleeson's court filing noted that the president has tweeted or re-tweeted about Flynn at least 100 times since March 2017, indicating that he "is personally invested in ensuring that Flynn's prosecution ends."