A federal appeals court on Monday denied an attempt by Michael Flynn, US President Donald Trump’s previous national security advisor, to dismiss the case against him. The case was originally brought by the FBI, but the FBI has since decided not to pursue the charges against Flynn further. Judge Emmet Sullivan has not permitted the dismissal of the case so quickly, however.
Flynn’s charges included falsifying information to the FBI during their investigation into his conversations with a Russian ambassador. Flynn had pleaded guilty, but the FBI announced in May that it would no longer pursue its case. Instead of accepting this dismissal, Sullivan, the judge presiding over the case, requested input from outside parties and appointed a retired judge to argue against the Department of Justice’s (DOJ) decision.
Sullivan’s decision was appealed to a panel of three judges in the US Court of Appeals for the District of Columbia Circuit, who ordered in a 2-1 decision that the case be dismissed per the DOJ’s request. That decision was then reheard the full DC Circuit sitting en banc.
Flynn argued to this panel of judges that the case should be immediately dismissed and that the district court’s appointment of retired judge John Gleeson to argue against the DOJ’s decision should be vacated. The 10-judge court held that Flynn did not establish that he has “no other adequate means to attain the relief he desires,” so these requests were denied. He also requested his case be assigned to a different district judge, which the court also denied because he had not “established a clear and indisputable right to reassignment.” Ultimately, the court stated that Flynn could appeal after the decision is issued by Sullivan regarding the arguments presented by Gleeson and the DOJ.
Judge Griffith explained the decision further in a concurring opinion:
This proceeding is not about the merits of the prosecution of General Flynn or the Government’s decision to abandon that prosecution. Rather, this proceeding involves questions about the structure of the judiciary and its relationship to the Executive Branch. […] Today we reach the unexceptional yet important conclusion that a court of appeals should stay its hand and allow the district court to finish its work rather than hear a challenge to a decision not yet made.
Flynn is still able to appeal this decision to the US Supreme Court.