The full Circuit Court of Appeals in Washington, D.C., has agreed to hold a re-hearing on the Justice Department’s efforts to drop the criminal case against former national security adviser Michael Flynn, the court announced Tuesday.
The announcement from the full court tosses out a previous 2-1 ruling by a three-judge panel on the court last month that sought to overrule D.C. district judge Emmet Sullivan and demand he accept the DOJ’s motion to end the case.
Sullivan had appointed an outside former judge to argue against the DOJ and Flynn’s legal team as he weighed whether to move forward in sentencing Flynn, who previously pleaded guilty to lying to the FBI about his contacts with the former Russian Ambassador in 2016. Sullivan had also raised issue with whether Flynn committed perjury by seeking to withdraw his plea.
The announcement is the latest twist in the more than three-year, politically fraught case first brought by former special counsel Robert Mueller in his investigation into Russian interference in the 2016 election.
Attorney General William Barr made the surprise decision to move to drop the case in May after he said a U.S. attorney he had appointed to review the FBI’s investigation uncovered evidence that undercut Flynn’s prosecution.
Barr has repeatedly sought to brush off criticism over his intervention in the case involving one of the president’s allies, saying in an interview at the time he was, “doing the law’s bidding.”
The Justice Department and Flynn’s attorney’s have additionally argued that when Sullivan did not initially accept their motion to dismiss the case, he overstepped his authority and assumed the role of the prosecution.
Two judges on the appeals court agreed with that assessment at least in part. D.C. Circuit Judge Neomi Rao wrote in her opinion last month seeking to overrule Sullivan that, “a hearing cannot be used as an occasion to superintend the prosecution’s charging decisions, because authority over criminal charging decisions resides fundamentally with the Executive without the involvement of—and without oversight power in—the Judiciary.”
“Each of our three coequal branches should be encouraged to self-correct when it errs,” Rao said. “If evidence comes to light calling into question the integrity or purpose of an underlying criminal investigation, the Executive Branch must have the authority to decide that further prosecution is not in the interest of justice.”
The full court will now hear arguments between Flynn’s legal team and lawyers representing Sullivan on Aug. 11.