Full Appeals Court Agrees to Rehear Appeal in Flynn Case

Written by Martin Walsh

The never-ending saga involving former National Security Adviser Michael Flynn has taken yet another shocking turn.

In late June, a three-judge panel on the United States Court of Appeals for District of Columbia Circuit ordered Judge Sullivan, who is overseeing Flynn’s case, to dismiss the case against the former Army lenient.

Sullivan refused and asked for a rehearing by a full appeals court after a three-judge panel ordered him to accept the Justice Department’s motion to dismiss the case.

Now, the full panel of a federal circuit court in Washington has agreed to rehear arguments from all parties on Aug. 11, the New York Times reported.

Here’s what Sullivan argued, in part, before the three-judge panel last month:

“The panel’s decision threatens to turn ordinary judicial process upside down,” Sullivan’s lawyer argued in a 69-page petition to the U.S. Court of Appeals for the D.C. Circuit on Thursday. “It is the district court’s job to consider and rule on pending motions, even ones that seem straightforward. This Court, if called upon, reviews those decisions — it does not preempt them. … And en banc review should be granted.”

Sullivan’s lawyer made three broad arguments on Thursday to convince the broader appeals court to listen to the case: first, that the appeals court panel “undermined” the appeal’s court’s “consistent interpretation of the mandamus standard by forcing the district court to grant a motion it had not yet resolved”; second, that the appeals panel “undercut Supreme Court and Circuit precedent in holding that the separation of powers precluded the district court from inquiring into the government’s [dismissal] motion”; and third, that the panel’s ruling “contravened Supreme Court and Circuit precedent in precluding the district court from appointing an amicus and scheduling a hearing.”

Here’s where things could get tricky.

The full appeals court has 11 judges and will make a determination over whether Sullivan must drop the charges against Flynn.

The panel is comprised of eight Democrat appointees and two Republican appointees. The 11th judge, Gregory Katsas, didn’t participate in the decision to take up the review.

In other words, the saga continues.

The Department of Justice filed a motion nearly two months ago to dismiss its criminal case against Flynn following recently presented documents. 

In the documents, we learned that the FBI had drawn up paperwork to close the case against Flynn, but fired agent Peter Strzok made a last-minute move to keep it open.

Handwritten notes from the FBI — which were withheld from Flynn’s defense team for years — show that a key goal of the agents investigating Flynn was “to get him to lie so we can prosecute him or get him fired.”

House Intelligence Committee ranking Republican Rep. Devin Nunes also revealed over the weekend that the FBI’s original interview summary with Flynn is “missing.”

FBI Director Christopher Wray also ordered an internal review of the bureau’s investigation that led to Flynn’s prosecution.

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