The DC Circuit Court of Appeals hearing Tuesday morning may be the most consistent yet in the years of hearing for Flynn.
Ten judges on appeal are repeating the arguments, following the dismissal of an earlier Circuit Court ruling that ordered a speedy dismissal earlier this summer.
The case is ultimately a separation of powers fighting between a judge’s authority and the Justice Department’s decision to file a prosecution, set against the political divorce over the Russia investigation, which President Donald Trump, lawyer General William Barr and Flynn’s lawyers this year have questioned how the FBI conducted the probe.
The arguments Tuesday may touch on some intense debates related to Flynn, including whether the dismissal of the justice department of the case was inconsistent with typical law enforcement decisions and whether his trial judge, Emmet Sullivan of the DC District Court, handled the case fairly.
Before Flynn appealed, Sullivan had questioned the Justice Department’s over-face in the case by asking a former federal judge to argue against the dismissal. Sullivan had also planned to hold a hearing before deciding what he would do, what he would stop because the appellate courts considered the standoff. Sullivan appeared to weigh whether he could convict Flynn without the support of prosecutors and whether Flynn could be held in contempt for potentially injuring himself by swearing separately under oath that he was both guilty and innocent.
Flynn was set to serve probably zero to six months in prison for lying.
He called on Sullivan’s movements to check the Justice Department’s mistakes in court, and the Trump Justice Department claimed it can only decide when a suspect is being prosecuted.
Sullivan “manages to justify the district court’s unusual intrusions on individual liberty and the executive’s compensation authority,” DC Appeals Court Judge Neomi Rao, a Trump nominee, wrote in the circuit’s preliminary 2-1 opinion in the case.
A verdict in favor of Flynn could lead to dismissal of his case and strip Sullivan of the power to challenge the decision of the Justice Department, while a verdict in favor of the judge in Flynn’s criminal case in could keep the court alive – potentially for more weeks than even in 2021. Tuesday, no verdict is expected.
Although full hearings are extremely rare at the DC Circuit, this is the second time the court has repeated a case related to the Mueller investigation – the first was the Second Chamber Association of former White House lawyer Don McGahn, which the court passed week decided by affirming the right of Congress and returning proceedings to the judge at the trial level.
DC Circuit Judge Greg Katsas – a Trump attorney who worked in the White House attorney’s office while Flynn was national security adviser – has apparently dismissed the arguments and will take up the case. Tuesday not heard. That leaves the makeup of seven Democratic nominees and three Republican nominees on the court as a potential turnout for Flynn.
The Flynn case has drawn criticism from Republicans over the dignity of the Russia investigation, from Democrats and former prosecutors over Barr’s decision to drop Flynn’s charge and from Flynn’s supporters over Sullivan’s approach.
In recent weeks, Barr has relied on one of his U.S. attorneys to send FBI documents from the early Russia investigation to the Flynn legal team, which they then make public in lawsuits.
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