The full United States Court of Appeals for the D.C. Circuit heard arguments on Tuesday on whether to order the immediate dismissal of the case against former Trump national security adviser Michael Flynn, raising sharp questions about whether such a step would be premature before a trial judge has an opportunity to consider the Justice Department's motivation to drop the prosecution, additional information available here.
Flynn's appeal comes before the court after he pleaded guilty — twice — to lying to the FBI during its investigation of Russia's interference in the 2016 U.S. election and the presidential campaign's suspected coordination of those efforts. Flynn and the Justice Department argue the decision to dismiss the prosecution is not reviewable — a position that a divided three-judge panel of the D.C. Circuit embraced in June. Late last month, the full D.C. Circuit Court of Appeals threw out a three-judge panel's 2-1 ruling that would have ordered District Court to accept the Justice Department's request to drop the case. See previous post, here.
At Tuesday's hearing, which ran for almost four hours, Circuit Judge Pillard remarked, "The district judge at the government's urging accepted [Flynn's guilty plea] as factually supported by the government's evidence -- [The District Court] didn't dream up this plea of guilty," Pillard said. "And the government demonstrably said it could meet our burden of proof beyond a reasonable doubt, he looked at that, he scrutinized that. And now your insisting that the district court contradict an order that he previously granted, he got on board -- and now you're saying, 'actually, nevermind.'"
Sullivan's attorney, Beth Wilkinson, has noted that Sullivan has not decided one way or the other on whether to sign off on the Justice Department's motion to dismiss Flynn's case, and that his motivation in appointing an outside judge was to simply hear all relevant arguments.