WASHINGTON (CN) — A month after it split 2-1 in favor of letting the Trump administration throw out Michael Flynn’s prosecution, the D.C. Circuit agreed Thursday to rehear the case en banc.
Setting arguments for Aug. 11, the brief order otherwise vacates last month’s panel ruling that directed U.S. District Judge Emmet Sullivan to immediately grant the Justice Department’s motion to dismiss.
All three members of the panel ruling will rehear the case, joined by seven of their colleagues. Seven of the judges were appointed to the federal appeals court by Democrats, and the other three are Republican appointees.
The decision comes on the heels of Attorney General William Barr testifying to Congress in response to allegations that the Justice Department was politically motivated in dropping the charge against Flynn.
“He has never asked me, directed me, pressured me to do anything in a criminal case,” Barr told the House Judiciary Committee, referring to President Donald Trump.
Flynn’s prosecution arose out of former special counsel Robert Mueller’s investigation of whether the Trump campaign facilitated Russian meddling in the 2016 U.S. election. At the House Tuesday, Barr denied that any prosecution has faced interference from Trump, whose Twitter page is full of accolades for the general tapped as his former national security adviser.
Before withdrawing his guilty plea and accusing the government of misconduct, Flynn pleaded guilty twice to lying to FBI agents investigating Russian interference in the 2016 presidential election.
More recently, in moving later to dismiss Flynn’s indictment, the government asserted that it no longer considered Flynn’s statements to the FBI to be materially false.
Barr appointed a U.S. attorney to investigate Flynn’s prosecution, and cited that prosecutor’s findings on Tuesday as the reason for the Justice Department’s reversal.
Rather than immediately grant the sudden dismissal, however, the Clinton-appointed Judge Sullivan opted to hold a hearing where a retired New York judge would argue against the motion as an amicus curiae.
Flynn’s attorneys in turn accused Sullivan of bias, persuading the D.C. Circuit panel last month that judicial intervention was unwarranted.
In the petition for rehearing en banc, filed on behalf of Sullivan, attorney Beth A. Wilkinson asserted that the panel ruling was not fact-bound based on the case record.
“It in fact marks a dramatic break from precedent that threatens the orderly administration of justice,” Wilkinson wrote.
Flynn’s attorneys have focused their objections on Sullivan, who served on the D.C. Court of Appeals, appointed by President George H. W. Bush, before his move to federal court.
“The District Court has hijacked and extended a criminal prosecution for almost three months for its own purposes,” Flynn’s attorney Sidney Powell wrote last week. “For these reasons and those in Flynn’s petition and reply, and the arguments and briefs of the government, this court should deny rehearing.”
In trying to force the judge’s hand, Flynn had argued that Sullivan was biased, “an umpire who has decided to steal public attention.”
But John Gleeson, the former Eastern District of New York federal judge whom Sullivan tapped as amicus curiae, determined that the government exhibited highly irregular conduct to benefit Trump’s political ally.
“Only by acting as a rubber stamp could the court presume that all of this is regular and that the government’s reasons here are anything but pretextual,” Gleeson wrote in an 82-page brief.
Defending against Flynn’s attacks, Sullivan held that he was merely carrying out his duties as the presiding judge.
“Judicial decisions are supposed to be based on the record before the court, not speculation about what the future may hold,” Wilkinson wrote on the judge’s behalf. “All the District Court has done is ensure adversarial briefing and an opportunity to ask questions about a pending motion.”
U.S. Circuit Judge Gregory G. Katsas will not participate in the oral arguments, having recused himself from all matters arising from the Mueller investigation. The judge had worked in the White House counsel’s office before Trump appointed him to a seat on the D.C. Circuit.
Katsas recusing himself leaves his fellow Trump nominee, U.S. Circuit Judge Neomi Rao, to hear the case over a prosecution that Republicans now staunchly claim was a targeted attack by Obama-era officials on the incoming administration.
“This is plainly not the rare case where further judicial inquiry is warranted,” Rao wrote for the majority last month in the panel decision that directed Sullivan to dismiss.
U.S. Circuit Judge Robert L. Wilkins, an Obama appointee who dissented in the panel decision, argued the majority was wrong to assume regularity on the part of the government.
“It is a great irony that, in finding the District Court to have exceeded its jurisdiction, this court so grievously oversteps its own,” Wilkins wrote in dissent.