WASHINGTON (CN) — Keeping the prosecution of former national security adviser Michael Flynn still alive, the full D.C. Circuit sided Monday with the judge who wants to hold arguments on the Justice Department’s bid for dismissal.
The court split 8-2 on the case, having reheard the matter en banc earlier this month following a panel ruling in June that favored Flynn.
Both judges who took Flynn’s side in June did so again this morning, but they failed to bring any colleagues to their side.
The government had ordered Flynn’s prosecution dismissed in May while the former general was fighting to withdraw a guilty plea he tendered years earlier. Though Flynn admitted to lying to the FBI about his contacts with Russia, Trump’s Justice Department now says it no longer considers Flynn’s statements to be materially false.
Flynn objected when U.S. District Judge Emmet Sullivan, who has been presiding over his prosecution, did not dismiss the charges against him immediately at the government’s behest.
Sullivan wants to hold a hearing on the matter and has appointed a former federal judge as amicus curiae, or friend of the court, to argue against the government’s effort.
The majority ruling issued Monday is unsigned, but one point that Judge Sullivan’s attorney Beth Wilkinson made before the court is emphasized in a concurring opinion from U.S. Circuit Judge Thomas Griffith.
“As its counsel repeatedly stated at oral argument, the district court may well grant the government’s motion to dismiss the case against General Flynn,” wrote Griffith, who was appointed by President George W. Bush.
“In fact, it would be highly unusual if it did not,” Griffith continued, “given the executive’s constitutional prerogative to direct and control prosecutions and the district court’s limited discretion under Rule 48(a), especially when the defendant supports the government’s motion. But if the court denies the motion, General Flynn has multiple avenues of relief that he can pursue. And because he does, mandamus is not appropriate in this case at this time.”
Griffith noted that today’s ruling focused solely on the authority of the judiciary to inquire into a core function of the executive — not touching the political battle lines drawn on Flynn’s case where the president’s supporters accuse Obama-era officials of targeting the former top-level adviser.
“Those questions are far removed from the partisan skirmishes of the day. The resolution of those questions in this case involves nothing more and nothing less than the application of neutral principles about which reasonable jurists on this court disagree,” Griffith wrote.
U.S. Circuit Judge Karen Henderson and U.S. Circuit Judge Neomi Rao each wrote dissents.
Though she aligned with Griffith in a separate case Monday that blunts the House’s subpoena powers, Henderson argued in the Flynn case that a different District Court judge in Washington should take over on remand.
“As to the majority’s decision not to reassign, my colleagues set an impossibly high bar for a trial judge’s impartiality to ‘reasonably be questioned,’” wrote Henderson, who is a George H. W. Bush appointee.
Rao, a Trump appointee, joined Henderson’s dissent and also wrote her own, where she argued that Sullivan should have been curbed to prevent what she described as a “usurpation of the executive power.”
“While a district court plays a limited role in granting ‘leave of court’ to an unopposed motion to dismiss, it is long settled that a district court cannot supervise the prosecutorial decisions of the Executive Branch,” says Rao’s 31-page dissent, which Henderson joined.
Flynn’s prosecution originated from the investigation of former special counsel Robert Mueller, and U.S. Circuit Judge Gregory G. Katsas, Rao’s fellow Trump appointee on the court, recused himself from the case because of his previous position in the White House counsel’s office.
As the prosecution returns now to Sullivan, the D.C. Circuit wrote Monday that it hopes the judge will proceed with “appropriate dispatch.”
Flynn’s attorney in recent months sought to undermine Sullivan’s character, arguing in briefs to the D.C. Circuit that the jurist was biased and an attention-hungry umpire.
But the majority found that nothing on the record indicated Sullivan harbored bias in connection with the underlying criminal case.
“Indeed, any views the district judge has conveyed in his briefing before us come from what he has learned in carrying out his judicial responsibilities,” the 18-page unsigned opinion states.