Flynn pleaded guilty in 2017 to a felony of lying to FBI agents investigating Russia’s interference in the 2016 presidential election. The former head of the Defense Intelligence Agency reaffirmed his guilt in 2018, but has since tried rescinding his statement, an effort that eventually won the backing of the Justice Department, which moved earlier this year to drop the case, citing alleged FBI misconduct.
But DOJ’s decision sparked a host of complaints that Attorney General William Barr sought to undermine the prosecution of a close ally of Trump, and Sullivan rejected efforts to resolve the matter immediately, instead of appointing an outside adviser to determine whether the court has scope to consider alternatives. Sullivan had scheduled a hearing on the matter earlier this month, but postponed it after the divided panel of the three-judge appeals court ruled he had overstepped his authority.
The decision to hear the case on the bench is good news for Sullivan. He took the unusual and perhaps unprecedented step of seeking a full-court review after the initial ruling, written by Neomi Rao, a person named by Trump, left many criminal justice experts and even some former judges baffled. Courts are reluctant to issue so-called “mandamus” decisions, forcing lower court judges to take specific measures, such as dismissing a case, when it is not the last resort, and Sullivan repeatedly emphasized that he had not ruled on a only way. the other in Flynn’s effort to finish the case against her.
The one-page appeal court order announcing the new banc hearing did not explain in detail why the entire court had agreed to handle the case, but the order asked the parties to respond in the August arguments if Flynn did not have “no other suitable means of relief” you are seeking.
That could be a sign that one or more judges believe that Flynn and the government should file complaints about Sullivan’s plans to handle the motion for dismissal with Sullivan, at least in the first instance, before seeking help from the appeals court. .
The court order also indicates that the judges hearing the case in banc will include seven appointed Democrats and three appointed Republicans.
One of the court’s judges, Trump’s designee Greg Katsas, withdrew as he has in other disputes involving the office of special counsel Robert Mueller, who initiated Flynn’s prosecution. The decision to take the case en banc required the approval of the majority of the court’s active and unjustified judges, but no account was released.
The decision also complicates matters for Trump, who has indicated that he intends to return Flynn to his political orbit, perhaps as a substitute for the campaign or even as an adviser. A hearing in mid-August means that a decision is not likely to be reached until late summer or even fall, with the election soon.
And if the appeals court upholds Sullivan, it could end up holding a high-profile hearing on the case in the weeks leading up to the November vote. Meanwhile, the felony charge against Flynn is still pending.
