The full U.S. Court of Appeals for the D.C. Circuit has ruled that the criminal case against former Trump national security adviser Michael Flynn is still alive, despite Attorney General William Barr’s best efforts. A smaller three-judge panel of the D.C. Circuit had ordered in June that the district court reviewing Barr’s attempt to have all charges against Flynn dismissed should cease the review and dismiss the charges.
U.S. District Court Judge Emmet Sullivan appealed that decision to the en banc court in July. In his petition for a rehearing, Sullivan called that ruling, written by Trump appointee Naomi Rao, “a dramatic break from precedent that threatens the orderly administration of justice.” The full circuit agrees, by a vote of 8-2. “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. That is a policy the federal courts have followed since the beginning of the Republic,” Judge Thomas Griffith wrote in a statement concurring with the court’s order.
That means Sullivan has authority to examine the Justice Department’s move to dismiss Flynn’s case for lying to the FBI before his sentencing in the district court. Sullivan had tapped retired New York federal Judge John Gleeson to review Barr’s efforts to give Flynn a pardon without having to make Trump do the dirty deed. Gleeson scorched Barr’s handling of the case. “Even recognizing that the Government is entitled to deference in assessing the strength of its case, these claims are not credible,” Gleeson wrote. “Indeed, they are preposterous.”
“The facts surrounding the filing of the Government’s motion constitute clear evidence of gross prosecutorial abuse. They reveal an unconvincing effort to disguise as legitimate a decision to dismiss that is based solely on the fact that Flynn is a political ally of President Trump,” Gleeson wrote in his 82-page review. He called Barr’s intervention an “irregular” effort that courts would “scoff” at. He was right.
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