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Trial judge tries to keep Michael Flynn case alive in new request to appeals court

CNN logo CNN 7/9/2020 By Katelyn Polantz, CNN
Michael T. Flynn wearing a suit and sun glasses: WASHINGTON, DC - JUNE 24: President Donald Trump's former National Security Adviser Michael Flynn leaves the E. Barrett Prettyman U.S. Courthouse on June 24, 2019 in Washington, DC. Criminal sentencing for Flynn will be on hold for at least another two months. (Photo by Alex Wroblewski/Getty Images) © Alex Wroblewski/Getty Images WASHINGTON, DC - JUNE 24: President Donald Trump's former National Security Adviser Michael Flynn leaves the E. Barrett Prettyman U.S. Courthouse on June 24, 2019 in Washington, DC. Criminal sentencing for Flynn will be on hold for at least another two months. (Photo by Alex Wroblewski/Getty Images)

The trial judge overseeing former Trump national security adviser Michael Flynn's court proceedings is pushing to keep the case alive.

Judge Emmet Sullivan of the DC District Court asked the full appeals court on Thursday to reconsider whether he has power to review a Department of Justice decision to drop the prosecution.

Sullivan has delayed dismissing Flynn's case after the Justice Department backed out of prosecuting Flynn this year for lying to the FBI about his conversations with a Russian government official. But a three-judge panel on the appeals court decided last month the judge must dismiss the case, cutting off Sullivan's ability to question the Justice Department's approach.

Previously, the DC Circuit Court of Appeals ruled 2-1 against Sullivan that Flynn's legal case was essentially over without a prosecutor and should be dismissed. But Sullivan now wants the full 11-judge circuit court of appeals to step in, according to his filing Thursday.

"The panel's decision threatens to turn ordinary judicial process upside down. It is the district court's job to consider and rule on pending motions, even ones that seem straightforward," Sullivan wrote to the DC Circuit on Thursday.

Sullivan's latest request, if granted by the full DC Circuit Court of Appeals, again positions the judge as opposite the Trump administration -- a situation that President Donald Trump has embraced as he's focused on attacking the Russia investigation and longtime judges, as well as nominating his own, as part of his reelection bid.

Rehearings of cases are rare in the powerful Washington-based appeals court. The appeals court has not yet responded.

Sullivan's request on Thursday may add another round in court to what's become an unusual and deeply political case -- one of the most significant prosecutions of a Trump adviser in recent months.

The case has become a major debate over the power of the courts as well as a conduit for President Donald Trump and his supporters to criticize the Russia investigation and for many in the legal industry to question the motives of Attorney General William Barr.

Sullivan previously argued that he has the right to scrutinize the Justice Department's request to drop the case and has considered whether he could even sentence Flynn over their objections. He also has pointed to several unresolved issues in the trial court proceedings, and asked whether he could punish Flynn for claiming under oath he was both innocent and guilty.

Flynn pleaded guilty to lying to the FBI about his Russian contacts but has since disavowed his plea. The Justice Department abandoned the case in May, saying Flynn never should have been investigated, but the case has been tied up in legal limbo the past several weeks.

Another stunning turn

Sullivan had planned to hold a hearing in July on the Justice Department's request to dismiss the case. He paused that schedule after the appeals court ruled against him last month.

The Flynn case has taken several stunning turns since Flynn first pleaded guilty in December 2017, becoming a key early cooperator against the President in the Mueller investigation.

Former prosecutors have widely condemned the Justice Department dropping the case, saying the about-face was intended to boost the President in an election year.

Flynn's supporters and Trump have grasped onto the recent developments to claim Flynn was unfairly targeted by Obama-era administration officials and mishandled by prosecutors in the special counsel's office and his lawyers who cut his plea deal with Mueller.

The Justice Department has defended the prosecutors' work, while continuing to hand internal FBI documents to Flynn's team even as recently as this week.

If the case is revived, it would keep Flynn in the spotlight, and is one of several ongoing major cases that pits the executive branch's power against another branch of government.

Because it raises questions about the judicial branch's power over the executive branch, the case could ultimately head to the Supreme Court -- and that may keep Flynn's fate unresolved until after the presidential election. If he were to be sentenced, Flynn likely faces zero to six months in prison.

While the two appellate judges who ruled in favor of Flynn last month were appointed by Republican presidents, the DC Circuit has a majority of Democratic-appointed judges.

This story has been updated with additional background.


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