Trials & Litigation

Full DC Circuit refuses to order immediate dismissal of Michael Flynn prosecution

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Michael Flynn

Former National Security Adviser Michael Flynn. Photo from

An en banc federal appeals court is refusing to interfere with a federal judge’s plan to review the U.S. Department of Justice’s bid to drop the prosecution of Michael Flynn, the former national security adviser.

The full U.S. Court of Appeals for the District of Columbia Circuit on Monday refused to order U.S. District Judge Emmet Sullivan of Washington, D.C., to immediately drop Flynn’s prosecution and refused to reassign the case to a different judge.

Flynn had previously pleaded guilty to lying to the FBI about his communications with Russia’s ambassador, but he later sought to withdraw the plea. The government said it wanted to drop the case because Flynn’s lies weren’t material to the investigation regarding whether Flynn was an agent of a foreign power.

Sullivan had appointed a lawyer to argue against dropping the case and scheduled a hearing to consider whether Flynn should be held in contempt for perjury.

The en banc court said Flynn had an adequate alternate means of relief because Sullivan could reject the arguments of the lawyer he appointed and could dismiss the prosecution.

Flynn “has not cited any case in which our court, or any court, issued the writ to compel a district court to decide an undecided motion in a particular way—i.e., when the district court might yet decide the motion in that way on its own,” the full appeals court said in a per curiam opinion.

The en banc court ruled after vacating a contrary decision by a D.C. Circuit panel. The author of the panel decision, Judge Neomi Rao, was one of two dissenters in the en banc case. Judge Karen Henderson, the other dissenting judge, had joined Rao’s panel opinion.

The Washington Post, Politico, the National Law Journal and Law360 have coverage of the Aug. 31 en banc opinion.

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