Appeals Court Rules Against Michael Flynn, Says Case Can’t Be Thrown Out Yet

( Just when Michael Flynn thought he could rest easy, a federal appeals court said “not so fast.”

On Monday, the DC Circuit Court of Appeals ruled by an 8-2 vote that the Justice Department couldn’t so quickly terminate its case against Flynn, President Donald Trump’s former national security adviser.

The ruling overturns a three-judge panel of the same court’s 2-1 ruling that said the case should end. The full court’s ruling once again gives power to trial Judge Emmet Sullivan, who asked a third-party lawyer to investigate and then argue against the Department of Justice in a hearing over whether Flynn’s case should be dropped.

Attorney General William Barr had decided to drop all charges against Flynn earlier this year, despite Flynn twice pleading guilty that he lied under oath when talking to FBI agents. Many legislators have said Barr’s decision to drop the case was influenced by the president.

In a concurring opinion, DC Circuit Court Judge Thomas Griffith wrote:

“In cases that attract public attention, it is common for pundits and politicians to frame their commentary in a way that reduces the judicial process to little more than a skirmish in a partisan battle. The party affiliation of the President who appoints a judge becomes an explanation for the judge’s real reason for the disposition, and the legal reasoning employed is seen as a cover for the exercise of raw political power. No doubt there will be some who will describe the court’s decision today in such terms, but they would be mistaken.”

Griffith was appointed to the bench under George W. Bush.

On the other side of the coin is Judge Neomi Rao, a Trump appointee. She says she believes the case against Flynn will ultimately be dismissed, despite the Appeals Court’s Monday ruling. In her dissent, she wrote:

“In Flynn’s case, the prosecution no longer has a prosecutor. Yet the case continues with district court proceedings aimed at uncovering the internal deliberations of the Department. The majority gestures at the potential harms of such a judicial intrusion into the Executive Branch, but takes a wait-and-see approach, hoping and hinting that the district judge will not take the actions he clearly states he will take.”

Flynn still has the ability to appeal this case to the Supreme Court. That effort would potentially stall Judge Sullivan from holding the hearing he has wanted to hold for a while now.

The appeals court further denied the request from Flynn’s legal team to assign the case to another trial judge. Flynn’s team had argued that Sullivan had become partial against their client.

The appeals court ruled, though, that Sullivan took the steps he did for “sound legal reasons.” He hired a lawyer to argue the case about his authority to hold the hearing, at the appeals court’s invitation — not because he was taking a particular side. The majority opinion read:

“Nothing about that participation created a reasonable impression of partiality, nor could it.”