A federal appeals court hearing arguments about President Donald Trump’s former national security adviser Michael Flynn on Friday firmly pushed back on his attempts to force his criminal charge’s dismissal immediately, even after the Justice Department backed Flynn.
Two of three judges on the DC Circuit Court of Appeals said Flynn’s case wasn’t ready to leave the hands of the trial-level judge below them, meaning that Flynn may not get a quick exoneration in court.
The appeals argument was an unusual turn in an even more unusual case that has come to signify the politics of the Justice Department, feed Trump’s attacks of the Russia investigation and enliven a battle between the Trump administration and other branches of government. Flynn pleaded guilty to lying to the FBI in late 2017 as part of the Mueller investigation into Russian interference in the election.
Flynn has a hearing scheduled for July 16 before DC District Judge Emmet Sullivan, the trial judge, about whether his case must be dismissed and whether he should be held in contempt of court for perjury. In the past, Sullivan has expressed disgust with his dishonesty, has questioned the Justice Department’s approach to dropping the case, and highlighted Flynn’s contradictory sworn statements that he was guilty and that he is innocent.
“There’s nothing wrong with him holding a hearing as far as I know. I don’t know of any authority that says he can’t hold a hearing before he takes action,” Judge Karen Henderson, a George H.W. Bush appointee, said during oral arguments on Friday. “For all we know, by the end of July, he will have granted the motion.”
Another judge on the panel of three, Robert Wilkins, an Obama appointee, told Flynn’s attorney he could return to the appeals court later.
When pressed to explain her legal reasoning for appealing this case early, Flynn’s attorney Sidney Powell said the case lingering in court hurts Flynn.
She cited “simply the fact that the judge doesn’t have the authority” to question the Justice Department’s dismissal or to sentence Flynn if he rejects it.
“The government’s just wasting resources out the wazoo pursuing this, and the toll it’s taking on the defendant is certainly irreparable harm,” Powell said.
But the appeals judges pushed back.
“I don’t see why we don’t observe regular order and allow him to rule. For all we know,” Sullivan could decide to dismiss Flynn’s case, Henderson said.
“We don’t know that’s going to happen. We have Judge Sullivan who is an old hand. He’s an excellent trial judge,” she added.
The Justice Department’s attorney responded, “The government respects Judge Sullivan.”
The DC Circuit Court of Appeals didn’t rule on Friday. Neomi Rao, a Trump appointee, also heard the case on the three-judge panel.