Appeals court appears wary of dropping Flynn charges

A federal appeals court on Tuesday appeared unsympathetic to arguments that it should order a district court judge to dismiss criminal charges against former national security adviser Michael Flynn.

The full D.C. Circuit Court of Appeals reheard oral arguments about how the Flynn case should proceed at the lower court after the Department of Justice (DOJ) suddenly moved to withdraw its case against the former adviser to President Trump.

Most of the judges appeared concerned with an earlier decision from a divided three-judge circuit panel that would have forced the district court to approve the DOJ’s motion without holding a hearing.

At Tuesday’s hearing, which ran nearly four hours, lawyers for Flynn and the Trump administration were grilled by a 10-judge panel about their stance that the lower court has no right to question the DOJ’s decision to drop the charges by holding such a hearing.

“How is it a breach of the separation of powers for the government to be asked questions?” asked Judge Thomas Griffith, who was appointed to the appeals court by former President George W. Bush.

“What is the government worried about?” added Judge Cornelia Pillard, an Obama appointee.

Flynn’s attorney and the DOJ are arguing that District Court Judge Emmet Sullivan is bound by federal court procedural rules to accept the prosecutors’ decision to drop the criminal charges.

Jeffrey Wall, the acting solicitor general who argued the case on Tuesday, insisted that in scenarios in which the government decides to drop a prosecution, judges are prohibited from questioning the move, even in hypothetical situations in which a defendant bribed prosecutors or was receiving favorable treatment because of political connections.

Wall also hinted that Attorney General William Barr may have based his decision to drop the charges on information that has not been made public, arguing it would be improper to force the executive branch to explain its legal decisionmaking in court.

“I just wanted to make clear that it may be possible that the attorney general had before him information that he was not able to share with the court. And so what we put in front of the court were the reasons that we could, but it may not be the whole picture available to the executive branch,” Wall said.

In May, the DOJ suddenly decided to drop its prosecution of Flynn despite the fact that he had pleaded guilty to lying to the FBI as part of an agreement to cooperate with the special counsel’s investigation into Russian meddling in the 2016 presidential election.

The DOJ said it no longer believed it could make a case against Flynn, who had by then renounced his earlier guilty plea, and called into question the FBI investigation that led to his interrogation. Flynn had admitted in court in 2017 to lying about his conversations with the Russian ambassador to the U.S. during the Trump administration’s transition period.

After the DOJ moved to drop its prosecution, Sullivan, the judge overseeing Flynn’s case, appointed an outside counsel to present a counter argument and set a briefing schedule to explore whether he should grant the motion.

But before Sullivan could hold the hearing, Flynn’s legal team filed an emergency petition asking the D.C. Circuit to preemptively block any further proceedings and order the charges dropped. A three-judge panel sided with Flynn in a 2-1 ruling, finding that the executive branch has the sole authority to prosecute criminal cases and that Sullivan overstepped his authority in not granting the motion outright.

“In this case, the district court’s actions will result in specific harms to the exercise of the Executive Branch’s exclusive prosecutorial power,” Judge Neomi Rao, a Trump appointee, wrote in the majority opinion, which was also joined by Judge Karen Henderson, a George H.W. Bush appointee.

Sullivan asked the appeals court to rehear the case, arguing that he is merely exercising the routine process of holding hearings on motions that have been submitted to him. His lawyer argued to the D.C. Circuit that Sullivan has not even decided which way to rule on the department’s motion and that the circuit court should not intervene until he issues a decision that could be appealed.

The full D.C. Circuit has vacated the three-judge panel’s decision while it rehears the case. If the judges’ questions at Tuesday’s hearing are any indication, it appears that a majority of the court may want to reverse the panel decision.

Aside from Rao and Henderson, the two judges behind the panel decision, it seemed every member of the circuit had tough questions for the DOJ and Flynn’s lawyer and were inclined to not force Sullivan to rule one way or the other without being able to hear arguments.

“What self-respecting Article III district judge would simply jump and enter an order without doing what he could do to understand both sides?” Pillard asked.

Flynn’s attorney, Sidney Powell, urged the circuit court to bring the case to an end and argued that Sullivan should be disqualified from overseeing the case in part because he’s been an active participant in the proceedings before the circuit court.

“This is a criminal case in which a man’s liberty and entire life has been consumed by four years of litigation, that the executive has now determined within its sole discretion should never have been brought against him,” Powell said.

Beth Wilkinson, an attorney arguing on Sullivan’s behalf, insisted that the judge hasn’t done anything that would warrant a recusal and that he is merely trying to follow a normal procedure in weighing a legal issue that’s been brought before him.

“Nowhere has the trial judge said that he’s going to collect evidence or require affidavits,” Wilkinson said. “He pointed out where some of these issues are, but there’s nothing that suggests he’s going to do anything other than having a hearing where the lawyers argue the motion.”

–This report was updated at 2:51 p.m.