Appeals court revives Michael Flynn case for another round of arguments about DOJ versus judge's power
A federal appeals court in Washington, DC, agreed to rehear arguments about the judicial branch's ability to question the Justice Department's decision to drop the prosecution of Michael Flynn, keeping the the controversial case against the former national security adviser alive.
Posted — UpdatedThe DC Circuit Court of Appeals on Thursday said it would throw out a previous ruling to dismiss Flynn's criminal charge and hear more arguments about a lower court judge's attempt to probe the Justice Department's move to dismiss the case in May.
Thursday's decision adds another round to what's become an unusual and deeply political case, one of the most symbolic prosecutions of a Trump adviser. In recent months, Flynn's case has become a conduit for President Donald Trump and his supporters' criticism of the Russia investigation and for many in the legal industry to question the motives of Attorney General William Barr.
The move was made by the full slate of DC Circuit judges, with the exception of one judge who did not participate in the matter, according to court documents, and wipes away a previous order from two of its judges to quickly end the two-year-old criminal case against Flynn. The decision to revive the case is rare in the powerful Washington-based appeals court, signaling that at least some of the judges believe the opinion allowing Flynn's appeal before a trial judge finished his work was wrong.
The full appeals court will rehear the case on August 11, the Circuit said.
If he were to be sentenced, Flynn faces a likely zero-to-six months in prison.
The DC Circuit has a majority of Democratic-appointed judges. Both Judges Neomi Rao and Karen Henderson, who voted for the dismissal, will sit on the panel to rehear the case, as will Judge Robert Wilkins, who wrote that his colleagues hurt the government's balance of powers by cutting short Sullivan's approach.
In all, seven of the 11 judges on the DC Circuit were appointed by Democrats and four were appointed by Republicans. Judge Gregory Katsas, a Trump appointee to the bench who previously worked in the White House counsel's office during the special counsel investigation, did not participate in Thursday's decision.
One additional Trump-appointed judge was confirmed by the Senate recently but hasn't been sworn in yet.
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