A federal court judge is putting up a highly unusual fight against an appeals court ruling seeking to immediately shut down the prosecution of former national security adviser Michael Flynn for making false statements in the FBI’s investigation into ties between the Trump campaign and Russia.
Lawyers for U.S. District Court Judge Emmet Sullivan filed a petition Thursday asking the full bench of the D.C. Circuit Court of Appeals to review a 2-1 decision a panel of that court issued last month, directing Sullivan to cancel his plans for a hearing and instead grant the government’s request to drop the case.
Sullivan’s petition says the steps he was taking, like setting a schedule for legal briefs, inviting friend-of-the-court submissions and scheduling a hearing, are commonplace. The appeals court panel’s earlier decision to shut down that process represents “a dramatic break from precedent that threatens the orderly administration of justice,” the judge’s submission argues.
The move by a district court judge to ask for so-called en banc review of a panel ruling is exceptionally rare. However, it is just the latest in a series of extraordinary developments in recent weeks in the criminal case against Flynn, who spent just 24 days as President Donald Trump’s first national security adviser.
After ordering a U.S. attorney in Missouri to conduct an unusual review of evidence in the Flynn case, Attorney General William Barr decided in May to abandon the false-statement prosecution, despite the fact that Flynn pleaded guilty to the felony charge in 2017 and reaffirmed that plea in 2018 before reversing course.
Citing newly discovered FBI records, Barr said the law enforcement agency had no legitimate basis to conduct the interview of Flynn, in which he allegedly repeatedly lied about his dealings with Russian Ambassador Sergey Kislyak during the presidential transition.
After Sullivan appointed a former judge, John Gleeson, to argue against the dismissal of the case, Flynn’s lawyers filed a rarely granted mandamus petition with the D.C. Circuit, seeking to shut down the proceedings in front of Sullivan.
The move seemed like a long shot to many observers. An argument session last month seemed to confirm that view. But on June 24, the court revealed that Trump-appointed Judge Neomi Rao had persuaded George H.W. Bush appointee Karen Henderson to essentially wrestle the motion away from Sullivan by ordering him to grant the dismissal without any further proceedings.
A third judge on the appeals panel, Obama appointee Robert Wilkins, filed a sharply worded dissent.
Sullivan’s new petition, filed by D.C. litigator Beth Wilkinson and colleagues, repeatedly upbraids the appeals court’s majority. Sullivan said there was no precedent deeming it improper to appoint a friend-of-the-court to weigh in on whether he must drop the case.
The judge’s filing also suggested it was bizarre that the appeals court’s ruling rested entirely on the harms to the government from intrusive questions Sullivan might ask, even though prosecutors never filed a petition asking the appeals court to shut down the case — Flynn did that.
The overarching theme of Sullivan’s submission is that Rao and Henderson were battling ghosts, since the trial judge had not actually done anything terribly uncommon.
“Judicial decisions are supposed to be based on the record before the court, not speculation about what the future may hold. All the district court has done is ensure adversarial briefing and an opportunity to ask questions about a pending motion. Outside the panel opinion, those actions have not been considered inappropriate — much less an extreme separation-of-powers violation justifying mandamus,” Wilkinson wrote.
Wilkins or any other member of the D.C. Circuit has authority to request a vote on whether to take the case en banc. It is unclear whether that happened, but Sullivan evidently decided to be proactive in seeking such a review.
One legal observer said Sullivan’s move was well within his prerogatives, even though it was a rarity.
“It’s very creative,” University of Richmond law professor Carl Tobias said. “Why can’t a district judge attempt to preserve what he believes is a fair approach?”
Unless the appeals court acts, the panel’s order compelling dismissal of the Flynn case is set to kick in on July 15. Sullivan had scheduled a hearing on government’s motion for the following day, but he postponed further proceedings indefinitely shortly after the appeals court’s ruling last month.
Granting the petition for en banc review requires a majority of the members of the court's active bench, which currently includes seven Democratic appointees and five Republican appointees. One judge who worked in the White House counsel's office early in Trump's presidency, Greg Katsas, has recused himself from disputes relating to the Russia investigation and special counsel Robert Mueller, who filed the charge against Flynn in 2017.
Kyle Cheney contributed to this report.