A key federal appeals court will reexamine case on Michael Flynn's guilty plea

Jonathan Ernst/ReutersMichael Flynn’s attempts to have his guilty plea dismissed is now headed for review by the full US Court of Appeals for the District of Columbia Circuit.
  • The full panel of the Washington, DC, Circuit Court of Appeals has agreed to reexamine the legal fight over Michael Flynn’s guilty plea from the Mueller investigation.
  • Last month, a three-judge panel from the appeals court ordered a lower federal district judge overseeing the case involving the former Trump national security adviser to dismiss it.
  • Thursday’s order vacates that decision and could result in a complee reversal of the three-judge panel’s decision to toss out the case.
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A key federal appeals court in Washington DC agreed Thursday to reexamine the fight over whether former Trump national security adviswer Michael Flynn’s guilty plea can be summarily dismissed.

The new order from 10 members of the US Court of Appeals for the District of Columbia Circuit comes a little over a month after a three-judge panel there ordered a lower federal district court judge who is overseeing the case against Flynn to dismiss the prosecution at the Justice Department’s request.

Flynn remains the most high-profile former Trump administration official to face criminal charges from special counsel Robert Mueller’s Russia investigation. He first pleaded guilty in December 2017 to lying to the FBI about his conversations with Russian’s ambassador to the US at the time, Sergey Kislyak, regarding US sanctions against Russia.

The retired Army lieutenant general who famously led chants of “lock her up” about Hillary Clinton during the 2016 Republican National Convention cooperated with Mueller’s investigators in the Russia probe. But he later shifted course before a federal judge could issue his final sentence by hiring new attorneys who took a more combative stance questioning the original FBI investigation.

DOJ later changed tactics in the Flynn case too over the objections of some of the original Mueller prosecutors, prompting an outcry from House Democrats who earlier this week peppered Attorney General William Barr with questions about the controversial decision.

Thursday’s order by the court is itself a monumental development. The full panel that will hear the case consists of more judges appointed by Democratic presidents (7) than those appointed by Republicans (3), which could result in a reversal of the three-judge panel’s decision to toss out the case.

Oral arguments are scheduled for Aug. 11. One DC Circuit judge, Gregory Katsas, a former Trump White House lawyer, is not participating, acccording to Thursday’s court order.

In its 2-1 decision last month, the appeals court had overturned US District Judge Emmet Sullivan’s decision to bring in a retired federal judge and veteran prosecutor to argue against DOJ’s motion to dismiss Flynn’s case. Sullivan was planning to hold a July 16 hearing to weigh whether to toss out the case against Flynn but he later postponed that session because of the appeal.

The appeals court ruled that Sullivan did not have the authority to prolong Flynn’s prosecution or examine the Justice Department’s motivation for wanting to drop the case.

“This is not the unusual case where a more searching inquiry is justified,” Judge Neomi Rao, a Trump-appointed judge, wrote in the majority opinion. Rao was joined by Judge Karen LeCraft Henderson, an appointee of President George H.W. Bush.

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