Meeting in a rare full session, most members of the U.S. Court of Appeals for the D.C. Circuit voiced skepticism about preventing a review of the government’s move to undo Michael Flynn’s guilty plea of lying to the FBI about his Russian contacts before President Donald Trump took office in 2017.
The legal and political battle over the Justice Department’s effort to drop its prosecution of President Donald Trump’s former national security adviser Michael Flynn continued Tuesday, as a federal appeals court in Washington seemed unlikely to order a judge to dismiss Flynn’s case immediately. Meeting in a rare full session, most members of the U. S. Court of Appeals for the D. C. Circuit voiced skepticism about preventing U. S. District Judge Emmet Sullivan from reviewing the government’s move to undo Flynn’s guilty plea of lying to the FBI about his Russian contacts before Trump took office in 2017. A divided three-judge panel in late June ordered Sullivan to close the case and said he was wrong to appoint a retired federal judge to argue against the government’s position and to schedule a hearing. But the full court, sitting Tuesday with 10 judges, agreed to take a second look at the unusual case that tests the power of the judiciary to check the executive branch. Judge Cornelia T. L. Pillard said Sullivan did not appoint the former judge to decide the case, but to represent one side in an adversarial system that is designed to ensure courts “get the law right.” Sullivan did so after prosecutors asked the judge to reverse his acceptance of Flynn’s sworn guilty plea. “The integrity and independence of the court is also at play here,” Pillard told acting solicitor general Jeffrey Wall, who represented the government. “What self-respecting judge would jump and enter an order without doing what he could do to understand both sides?” Judge Thomas Griffith also disagreed with Flynn’s lawyer, Sidney Powell, that a trial judge’s role in considering a dismissal motion is merely “ministerial.” “That means the judge has to do some thinking about it. The judge is not simply a rubber stamp,” Griffith said during the nearly four-hour argument carried via live stream because of the coronavirus pandemic. One reason federal rules require prosecutors to get permission — or “leave of court” — from a judge to dismiss charges, Griffith said, is to allow the judge “to examine favoritism for politically powerful defendants.
