- The Washington Times - Monday, August 31, 2020

A federal appeals court on Monday rejected the Justice Department’s bid to end the criminal case against Michael Flynn, giving the judge who wouldn’t let the case go another crack at President Trump’s former national security adviser.

The U.S. Court of Appeals for the D.C. Circuit voted 8-2 to return the politically charged case to Judge Emmet G. Sullivan, who will decide whether the Justice Department can abandon its nearly three-year prosecution of Flynn.

The decision also overturned a 2-1 ruling in June from a three-judge panel on the same court that ordered Judge Sullivan to dismiss the case.

Sidney Powell, who is representing Flynn, slammed the decision as a “disturbing blow to the rule of law.”

The decision split closely along partisan lines. One Republican appointee joined seven Democratic-appointed judges to keep the Flynn case alive. The two dissenting judges were nominated by Republican presidents.

Flynn’s case had become tinged with partisan politics since special counsel Robert Mueller indicted him in 2017.

Mr. Trump has pointed to evidence that the FBI may have set up Flynn as proof that the Russia investigation was a hoax designed to undercut his administration. Democrats decried Attorney General William Barr’s decision to drop the case and suggested he was doing favors for the president’s friends.

The decision keeps Flynn in legal hot water while sending his case back to Judge Sullivan, whom Flynn’s legal team has accused of bias. Unless Flynn’s attorneys appeal the ruling to the Supreme Court, Judge Sullivan will set a new schedule in the trial, which could send the former Trump official to prison.

Flynn twice pleaded guilty to lying to the FBI about his contacts with Sergei Kislyak, who was Russia’s ambassador to the U.S., in the weeks before Mr. Trump took office.

Flynn, a retired Army lieutenant general and former director of the Defense Intelligence Agency, later recanted and professed his innocence.

Instead of immediately granting the department’s request, Judge Sullivan appointed a retired federal judge to act as an impartial advocate or amicus to argue against dismissing the case and weigh whether Flynn should face perjury charges for changing his guilty plea.

In the appeal court’s majority opinion, which was unsigned, the court said Judge Sullivan did have the authority to challenge the Justice Department, especially since he had not decided on whether to drop the case.

“A court of appeals should stay its hand and allow the district court to finish its work rather than hear a challenge to a decision not yet made,” Judge Thomas Griffith wrote in a concurring opinion. “That is a policy that federal courts have followed since the beginning of the Republic.”

The majority also backed Judge Sullivan’s decision to appoint a retired judge to review the case, saying it was within his rights.

“Precedent and experience have recognized the authority of courts to appoint an amicus to assist their decision-making in similar circumstances, including in criminal cases and even when the movant is the government,” the majority wrote.

Judge Karen LeCraft Henderson, who was appointed by President Reagan, disagreed.

In a dissenting opinion, she wrote that Judge Sullivan’s conduct, “patently draws his impartiality into question” and suggested that the case be reassigned.

“The trial judge’s ‘extreme’ conduct throughout this case, culminating in his decision to ignore the writ and instead seek en banc review, demonstrates a ‘clear inability to render fair judgment,’” she wrote.

The other dissenter, Judge Neomi Rao, said the Flynn case will ultimately be dismissed even after the trial court concludes its review.

“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,” wrote Judge Rao, a Trump appointee.

The Justice Department did not respond to a request for comment.

The judges also refused to reassign the Flynn case to another judge, rejecting the Flynn’s legal team’s accusations that Judge Sullivan is biased against him.

The appeals court judges said there was nothing in the record indicating that Judge Sullivan had taken a side in the case and none of his actions, including the appointment of an amicus, added up to partisan behavior.

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

Judge Griffith, who was appointed by President George W. Bush, broke ranks to join the court’s seven Democrat-appointed judges in ruling against Flynn.

Pushing back against the heated political discourse, Judge Griffith warned in his concurring opinion that the court’s majority decision was not a political statement.

“In cases that attract public attention, it is common for pundits and politicians to frame their commentary in a way that reduces the judiciary process to little more than a skirmish in a partisan battle,” he wrote. “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 of 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,” Judge Griffith said.

• Jeff Mordock can be reached at jmordock@washingtontimes.com.

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