Federal appeals court denies Flynn's bid to order judge to dismiss case

Washington — A federal appeals court in the District of Columbia has denied a request from Michael Flynn, President Trump's former national security adviser, to force a lower court judge to immediately drop the Justice Department's criminal case against him.

The full U.S. Court of Appeals for the District of Columbia Circuit ruled against Flynn 8-2 and is sending the case back to the lower court, allowing U.S. District Judge Emmet Sullivan to examine the Justice Department's request to toss out the case against Flynn. Judges Neomi Rao, appointed by President Trump, and Karen LeCraft Henderson, appointed by President George H.W. Bush, dissented.

In its 61-page ruling, the D.C. Circuit found Flynn "has not established that he has 'no other adequate means to attain the relief he desires.'" The full court also declined to require the case be assigned to a different judge, as Flynn "has not established a clear and indisputable right to reassignment."

Flynn pleaded guilty in December 2017 to lying to the FBI about his contacts with the former Russian ambassador to the U.S., Sergey Kislyak, in the wake of the 2016 election. The case against Flynn stemmed from the FBI's investigation into Russian meddling in the presidential election, which was later taken over by special counsel Robert Mueller. But in January, Flynn sought to withdraw his guilty plea. In May, the Justice Department filed a motion with the U.S. District Court in Washington seeking to dismiss its criminal case against Flynn, arguing "continued prosecution of this case would not serve the interests of justice."

U.S. District Court Judge Emmet Sullivan, however, declined to immediately dismiss Flynn's case, and appointed a retired federal judge, John Gleeson, as a "friend of the court" to argue against the Justice Department. In response to Sullivan's move, Flynn filed an emergency appeal to the D.C. Circuit to force Sullivan to drop the case.

A three-judge panel on the D.C. Circuit, which included Rao and Henderson, ruled 2 to 1 in favor of Flynn in June, but Sullivan appealed the ruling and asked for the full court to rehear the case. The full D.C. Circuit held oral arguments earlier this month.

In its ruling, the D.C. Circuit said Sullivan has the authority to appoint an amicus, Gleeson.

"Quite simply, the only separation-of-powers question we must answer at this juncture is whether the appointment of an amicus and the scheduling of briefing and argument is a clearly, indisputably impermissible intrusion upon executive authority, because that is all that the district judge has ordered at this point," the court said. "We have no trouble answering that question in the negative, because precedent and experience have recognized the authority of courts to appoint an amicus to assist their decision-making in similar circumstances, including in criminal cases and even when the movant is the government."

Robert Legare contributed reporting.