Appeals Court to Either Reassign Flynn Case or Restrict Judge, Lawyers Say

Former national security adviser Michael Flynn exits a vehicle as he arrives for his sentencing hearing at U.S. District Court in Washington on Dec. 18, 2018. Jonathan Ernst/Reuters

The case of former Trump adviser Michael Flynn may be reassigned to a different judge, or the current judge will be restricted in how he can proceed, several lawyers have predicted based on recent developments in the case.

The U.S. Court of Appeals for the District of Columbia Circuit will hear the case on Aug. 11.

Flynn’s lawyers consider the current district judge, Emmet Sullivan, to be biased against Flynn, mainly because Sullivan has refused to accept the Department of Justice’s (DOJ) decision in May to drop the case, which has been stuck in the court process since.

Flynn, a retired three-star Army general, pleaded guilty to lying to the FBI in 2017, but later moved to withdraw the plea, saying he was misled and pressured into it.

The DOJ moved to dismiss the case after a review highlighted documents indicating that the FBI didn’t have a proper investigative purpose to interview Flynn and may have done so only to elicit false statements from him.

A three-judge panel of the appeals court ordered Sullivan to accept the case dismissal in June, after which he appealed for a rehearing before the full court of 11 judges (en banc).

The court granted the hearing, but on Aug. 5, ordered the parties to “be prepared to address at oral argument the effect, if any” of a law that tells judges to recuse themselves if their “impartiality might reasonably be questioned” and also when they become “a party to the proceeding.”

Option 1: Sullivan Goes

“They are going to conclude that by petitioning for rehearing en banc, Judge Sullivan has, practically if not officially, made himself a ‘party’ to the district court proceedings, and as such the very appearance of bias means he cannot continue overseeing the case,” appellate attorney John Reeves, former assistant Missouri attorney general, predicted in an email.

Former federal prosecutor Andrew McCarthy agreed.

“It is incumbent on him to recuse himself,” he said in an Aug. 8 National Review op-ed. “If he can’t bring himself to do that—a failure that would further demonstrate a lack of judicial detachment—the D.C. Circuit should disqualify him. Either way, the case should be reassigned to a new judge, who should promptly grant the Justice Department’s motion to dismiss.”

The court won’t formally order the new judge to accept the case dismissal, Reeves said, “but will informally ‘remind’ the new judge about the law limiting the courts’ ability to question the prosecution’s motives for seeking dismissal, especially when it is unopposed.”

The new judge should only take a week or two to familiarize himself or herself with the case file.

This doesn’t mean, however, that Flynn will be treated more favorably. Of the 14 D.C. district judges, 10 were appointed by Democratic presidents, an approximate indicator of their leanings.

Option 2: Sullivan Stays

While the court “would be within its rights to reassign the case,” it’s more likely the appeals court will allow Sullivan to stay, but will impose restrictions on him, said Mark Chenoweth, executive director and general counsel at the New Civil Liberties Alliance, a nonprofit that litigates against administrative state overreach.

Flynn originally sought the appeals court’s intervention because Sullivan indicated he would allow third parties to weigh in on the dismissal.

Sullivan then appointed former federal Judge John Gleeson as an amicus curiae (friend of the court), tasking him to develop arguments against the case dismissal. He then ordered a hearing on the matter.

Just days before his appointment, Gleeson had co-authored an op-ed arguing for Sullivan’s launching a “full, adversarial inquiry” into the dismissal and possibly denying it and sentencing Flynn.

The appeals court’s three-judge panel, in a split 2–1 decision, granted Flynn’s mandamus petition.

Because the Constitution leaves charging decisions to the executive, a hearing on dismissal motion is only appropriate in some rare cases, which Flynn’s “is plainly not” and “cannot be used as an occasion to superintend the prosecution’s charging decisions,” stated the opinion, authored by Judge Neomi Rao, a Trump appointee.

In vacating the decision, the appeals court signaled that the majority of the judges weren’t convinced.

It ordered that “the parties should be prepared to address whether there are ‘no other adequate means to attain the relief’ desired.”

“It is possible the en banc court thinks that Judge Sullivan should have been allowed to proceed with a hearing on the motion to dismiss charges, while surely still cutting back on the outsized role amici were slated to play in that district court hearing,” Chenoweth said in an email.

“If so, the court could say that any error in Judge Sullivan’s ultimate ruling on the motion to dismiss charges would be correctable on appeal.”

Seven of the 11 active judges were appointed by Democrat presidents. In addition, one Trump appointee, Judge Gregory Katsas, recused himself from the case.

The process with Flynn, former head of the Defense Intelligence Agency during the Obama administration and former national security adviser to President Donald Trump, has been marked by dozens of lies, contradictions, and unusual occurrences.

In June, documents were released indicating that in early 2017, both then-President Barack Obama and Vice President Joe Biden were personally involved in the case.

The evidence shows that Obama discussed the case with the director of the FBI and a top Justice Department official in January 2017, a day after investigators at the FBI intended to dismiss the case but were held off by higher-ups.

Ivan Pentchoukov contributed to this report.