Flynn Judge Defies Appeals Court, Asks For Full Review Of Order To Drop Case

The judge in Michael Flynn’s criminal case is refusing to accept the results of a federal appeals court three-judge decision ordering him to dismiss the case against the former national security adviser.

Judge Emmet Sullivan has instead asked the appeals court for an ‘en banc’ review of the decision – meaning the entire panel of all active judges on the court would re-hear the case.

Flynn update:

Judge Sullivan refuses to give up – and asks the DC Circuit for a rehearing (en banc) on the dismissal of the Flynn case.

Allegation: the DC Circuit granting of mandamus “threatens the orderly administration of justice.”

Full doc:https://t.co/q1vcbGxKiA pic.twitter.com/76ahD1xqWM

— Techno Fog (@Techno_Fog) July 9, 2020

Interestingly, if the appeals court grants the en banc request, reversing the previous ruling would mean undermining a decision by Obama appointee, Chief Judge Srinivasan – whose ruling in United States v. Fokker Services B.V. effectively removed Sullivan’s authority to deny the DOJ’s request to dismiss Flynn’s case.

Some  commentators have read Fokker as effectively wiping out Sullivan’s authority to deny the government’s request in Flynn’s case, given that opinion’s sweeping assertion that “decisions to dismiss pending criminal charges … lie squarely within the ken of prosecutorial discretion,” leaving no “substantial role for courts.” But it would be a mistake to overread this passage. Fokker concerned a trial court’s authority under the Speedy Trial Act to interfere with a proposed deferred prosecution agreement, essentially a form of pretrial probation in which a case is put on hold for a year or more while the prosecutor monitors the defendant’s behavior. No Rule 48 motion was filed in that case, which means the court of appeals had no occasion to revisit or alter its governing opinion in Ammidown. –Lawfare Blog

As CNBC notes, however, en banc reviews are rarely granted – but Flynn’s case is anything but common.