WASHINGTON -- A federal judge can scrutinize the Justice Department's decision to drop the criminal case against President Donald Trump's former national security adviser Michael Flynn, a federal appeals court ruled Monday.
The divided decision from the full U.S. Court of Appeals for the D.C. Circuit gives U.S. District Judge Emmet Sullivan the go-ahead to question prosecutors' unusual move to dismiss Flynn's case ahead of sentencing. The retired general twice pleaded guilty to lying to the FBI about his Russian contacts before Trump took office in 2017.
In an 8-2 ruling, the court denied Flynn's request, backed by the Justice Department, to shut down Sullivan's planned review and appointment of a retired federal judge to argue against the government's position.
The decision by the full court reverses an earlier ruling by a three-judge panel of the same court that ordered Sullivan to immediately close the case.
Judge Thomas Griffith said it would be premature for the appeals court to intervene before Sullivan had rendered a decision.
"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," Griffith wrote in a statement concurring with the court's unsigned opinion. "That is a policy the federal courts have followed since the beginning of the Republic."
The court also rejected an argument by Flynn's lawyer, Sidney Powell, that the case should be assigned to a different judge because Sullivan had appointed a so-called amicus to critique the government's arguments and then asked the full appeals court to overturn the panel's order.
"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 unsigned opinion said.
Two judges, Neomi Rao and Karen Henderson, each wrote dissenting opinions arguing that Sullivan had usurped his authority by keeping alive a case the Justice Department sought to have dismissed. Both judges were part of a 2-1 ruling in June that ordered Sullivan to dismiss the case.
"In Flynn's case, the prosecution no longer has a prosecutor," Rao wrote. "Yet the case continues with district court proceedings aimed at uncovering the internal deliberations of the Department. The majority gestures at the potential harms of such a judicial intrusion into the Executive Branch, but takes a wait-and-see approach, hoping and hinting that the district judge will not take the actions he clearly states he will take.
Henderson called for Sullivan's removal from the case and said he had compromised his impartiality "beyond repair" by seeking review of the panel's decision by the full court and hiring an attorney to represent him before the D.C. Circuit.
In a tweet Monday, Powell said the court's decision is a "disturbing blow" to the rule of law.
In May, Sullivan refused to immediately sign off on the Justice Department's request to toss the case. Instead he tapped John Gleeson, a retired New York federal judge, to oppose the Justice Department.
Sullivan's move prompted Flynn's defense team to petition the D.C. Circuit to get involved midstream and force the judge's hand. Sullivan hired his own lawyer to defend the court's authority to investigate whether dismissing the case is in the public interest.
The extraordinary legal battle has raised unsettled questions about the power of the courts to check the executive branch. Federal rules require prosecutors to get permission from the presiding judge -- or "leave of court" -- to drop charges against a criminal defendant. Legal experts and former judges, however, disagree about the limits of Sullivan's authority, and in practice, judges typically defer to prosecutors.
But there is nothing typical about this case.
ROOTED IN SANCTIONS
Flynn was questioned by the FBI just days after Trump's inauguration about his conversations with the then-Russian ambassador to the U.S. pertaining to sanctions that had just been imposed by the Obama administration for Russian election interference.
The conversation alarmed law enforcement and intelligence officials who were already investigating whether the Trump campaign had coordinated with Russia to sway the presidential election in Trump's favor, and officials were puzzled by the White House's public insistence that Flynn and the diplomat had not discussed sanctions.
Flynn pleaded guilty to lying to the FBI in a signature prosecution in special counsel Robert Mueller's investigation into ties between the 2016 Trump campaign and Russia. Flynn agreed months into the investigation to cooperate with the authorities in hopes of receiving a lighter sentence.
But as Flynn awaited sentencing, Attorney General William Barr appointed a U.S. attorney from St. Louis to investigate the handling of the Flynn case and later endorsed that prosecutor's recommendation that the case be dismissed.
The Justice Department said it had concluded that the FBI had an insufficient basis to interrogate Flynn about his conversations with the diplomat, which Barr has said were appropriate for an incoming national security adviser to have had, and that statements he made during the interview were not material to the FBI's underlying counterintelligence investigation into the Trump campaign.
Law enforcement officials who were involved in the investigation vehemently disagreed with that conclusion.
Flynn's lawyers told the appeals court that Sullivan had no discretion to continue the case once the government decided to drop it. They also asked the court to reassign the case, accusing Sullivan of bias in his choice of Gleeson to argue the other side. The retired federal judge called the Justice Department's attempt to undo the conviction politically motivated and "gross abuse of prosecutorial power."
JUDICIAL BIAS REJECTED
In her dissent, Henderson also criticized Sullivan for obtaining a lawyer, saying it added to the appearance that he views himself as a party in the case.
"If there was any doubt up to this point whether his conduct gives the appearance of partiality, that doubt is gone," Henderson wrote, characterizing Sullivan's decision to seek review by the full court as "'extreme' conduct."
But the court majority backed Sullivan, saying the judge was not disqualified and had participated in the appeal at the D.C. Circuit's invitation.
Nothing in Sullivan's filing, the court said, "indicates bias in connection with the underlying criminal case. Indeed, any views the District Judge has conveyed in his briefing before us come from what he has learned in carrying out his judicial responsibilities."
At oral argument, Jeffrey Wall, the acting solicitor general, also urged the court to block the judge's review, saying Sullivan has no authority to dig into the administration's motives for seeking to drop the case.
In response, Sullivan lawyer Beth Wilkinson told the court that it was premature and unprecedented to short-circuit the judge's review before he had an opportunity to render a decision.
Trump and his supporters have rallied behind Barr's intervention and Flynn's effort to undo his guilty plea. Supporters say Flynn never should have been interviewed by the FBI. But scores of former and current Justice Department employees say the move is a troubling example of the department bending to political pressure and the president's interests.
Information for this article was contributed by Ann E. Marimow of The Washington Post; by Eric Tucker and Mark Sherman of The Associated Press; and by Charlie Savage of The New York Times.