WASHINGTON – The judge overseeing the case of Michael Flynn is asking a federal appeals court in Washington to make the unusual decision of rehearing the appeal of President Donald Trump's former national security adviser.
If the full appeals court agrees to rehear the case, it would resurrect the prospect of challenging the Justice Department's controversial decision to drop the case against Flynn, a defendant who twice pleaded guilty.
And it would give U.S. District Judge Emmet Sullivan another shot at convincing the higher court that his equally controversial action – appointing a third party to challenge the prosecutors' bid to drop the case and to examine whether Flynn had committed perjury for pleading guilty and later claiming to be innocent – was justified.
Last month, a three-judge panel from the appeals court ruled that it wasn't.
The panel, in a 2-1 decision, ordered the dismissal of Flynn's case, handing a key victory to both Flynn and the Justice Department, which has cast doubt on the legitimacy and fairness of the agency's investigation of Flynn.
D.C. Circuit Court Judge Neomi Rao, who wrote the opinion, called Sullivan's actions "unprecedented intrusions on individual liberty" and on the Justice Department's prosecutorial powers. Rao described Sullivan's actions as a "mistaken understanding" of a judge's role. His intent to "scrutinize the reasoning and motives of the Department of Justice constitute irreparable harms that cannot be remedied on appeal," said Rao, who was appointed by Trump last year.
In a court filing Thursday, Sullivan's attorney, Beth Wilkinson, said the panel's ruling circumvents Supreme Court precedent about separation of powers between the judiciary and executive branches of government.
"The panel’s decision threatens to turn ordinary judicial process upside down. It is the district court’s job to consider and rule on pending motions, even ones that seem straightforward. This Court, if called upon, reviews those decisions – it does not preempt them," Wilkinson wrote.
Wilkinson argued that Sullivan's main goal is to consider both sides of an issue, which became impossible in Flynn's case because both defense and prosecutors agreed to dismiss the case.
"Judicial decisions are supposed to be based on the record before the court, not speculation about what the future may hold," Wilkinson said. "All the district court has done is ensure adversarial briefing and the opportunity to ask questions about a pending motion."
The appeals court on Friday temporarily blocked its previous ruling from going into effect until it decides whether or not to rehear the case.
Sullivan's move to ask for a rehearing is yet another unusual development in Flynn's case – which began as a seemingly straightforward prosecution of a defendant who admitted lying to the FBI but has since devolved into a tangled and politically fraught saga that has pitted one branch of government against another.
Flynn pleaded guilty in 2017 to lying to the FBI about his communications with a former Russian ambassador, but later reversed course, claiming investigators entrapped him into making false statements.
The Justice Department, under Attorney General William Barr, also reversed course and sought to dismiss the case. The Justice Department, which tapped an outside prosecutor to review the case, argued that the January 2017 interview, during which Flynn made false statements to the FBI, was "unjustified." The interview did not have "a legitimate investigative basis," making Flynn's statements irrelevant "even if untrue," the department argued.
Flynn's attorneys have also argued that FBI notes and documents declassified in recent weeks are exculpatory evidence that prosecutors failed to disclose. His legal team, led by Sidney Powell, a conservative lawyer and frequent Fox News commentator, has accused the FBI under the Obama administration of conspiring to frame Flynn.
Instead of granting dismissal, Sullivan appointed retired federal judge John Gleeson to argue against the Justice Department's motion to dismiss and to examine whether Flynn had committed perjury.
Gleeson said the Justice Department showed a "gross abuse of prosecutorial power" in its push to drop the case.
"The Department of Justice has a solemn responsibility to prosecute this case – like every other case – without fear or favor," Gleeson argued. "It has abdicated that responsibility through a gross abuse of prosecutorial power, attempting to provide special treatment to a favored friend and political ally of the President of the United States."
Flynn's attorneys asked the federal appeals court to intervene by ordering Sullivan to dismiss the case.
This article originally appeared on USA TODAY: Michael Flynn: Judge Emmet Sullivan asks appeals court for rehearing