Two of three judges on the DC Circuit Court of Appeals said Flynn’s case wasn’t ready to leave the hands of the trial-level judge below them, meaning that Flynn may not get a quick exoneration in court.
The appeals argument was an unusual turn in an even more unusual case that has come to signify the politics of the Justice Department, feed Trump’s attacks on the Russia investigation and enliven a battle between the Trump administration and other branches of government. Flynn pleaded guilty to lying to the FBI in late 2017 as part of the Mueller investigation into Russian interference in the election.
One judge even made an analogy between Flynn’s situation and a need to question Department of Justice decision-making in racially sensitive cases about police brutality.
Flynn has a hearing scheduled for July 16 before DC District Judge Emmet Sullivan, the trial judge, about whether his case must be dismissed and whether he should be held in contempt of court for perjury. In the past, Sullivan has expressed disgust with his dishonesty, has questioned the Justice Department’s approach to dropping the case, and highlighted Flynn’s contradictory sworn statements that he was guilty and that he is innocent.
“There’s nothing wrong with him holding a hearing as far as I know. I don’t know of any authority that says he can’t hold a hearing before he takes action,” Judge Karen Henderson, a George H.W. Bush appointee, said during oral arguments on Friday. “For all we know, by the end of July, he will have granted the motion.”
Another judge on the panel of three, Robert Wilkins, an Obama appointee, told Flynn’s attorney he could return to the appeals court later.
When pressed to explain her legal reasoning for appealing this case early, Flynn’s attorney Sidney Powell said the case lingering in court hurts Flynn.
She cited “simply the fact that the judge doesn’t have the authority” to question the Justice Department’s dismissal or to sentence Flynn if he rejects it.
“The government’s just wasting resources out the wazoo pursuing this, and the toll it’s taking on the defendant is certainly irreparable harm,” Powell said.
But the appeals judges pushed back.
“I don’t see why we don’t observe regular order and allow him to rule. For all we know,” Sullivan could decide to dismiss Flynn’s case, Henderson said.
“We don’t know that’s going to happen. We have Judge Sullivan who is an old hand. He’s an excellent trial judge,” she added.
The Justice Department’s attorney responded, “The government respects Judge Sullivan.”
The DC Circuit Court of Appeals didn’t rule on Friday. Neomi Rao, a Trump appointee, also heard the case on the three-judge panel.
Rao pressed a lawyer representing Sullivan about the judge’s decision to hear from an outside lawyer arguing against the Justice Department’s dismissal.
She also probed a Justice Department proposal of the court limiting what Sullivan can do. Both the Justice Department and Flynn’s attorneys made clear they don’t want Sullivan to hold contempt proceedings for Flynn or a hearing where witnesses are asked about what happened behind-the-scenes on the dismissal decision.
Sullivan’s attorney, Beth Wilkinson, said the trial judge hasn’t decided yet what to do in Flynn’s case.
“All the judge is doing is receiving briefing, and having a hearing,” Wilkinson said.
At one point, Wilkins shifted the arguments away from discussion of Flynn with a hypothetical question about the Justice Department making decisions on race-based prosecutions. If the appeals court cuts off Sullivan from reviewing Flynn’s case, Wilkins asked, does that mean trial judges couldn’t review Justice Department decisions or appoint a prosecutor if the department wanted to drop civil rights cases against police for excessive use of force?
“Suppose you have a case where federal law enforcement officers pleaded guilty” and the Justice Department sought to drop the charge, Wilkins said. “But part of the reasoning … was that the victim is black, the defendant law enforcement officer is white and they did not believe the jury would believe the black victim over a white officer.” He asked if the Justice Department could drop that case without much explanation to a judge.
The Justice Department lawyer, Jeffrey Wall, argued that situation would be different from Flynn’s, because the department’s intentions might be unconstitutional.
CNN’s Cat Gloria contributed to this report.