The federal judge who declined to rubber-stamp the Justice Department’s request to dismiss the prosecution of President Donald Trump’s first national security adviser was ordered by an appeals court to respond to Michael Flynn’s petition to have his case thrown out immediately.
Flynn made his emergency filing to the federal appeals court in Washington after U.S. District Judge Emmet Sullivan declined to immediately dismiss his prosecution for lying to federal agents after the Justice Department made its May 7 request. Sullivan, an appointee of Bill Clinton, instead named a former federal judge and mob prosecutor, John Gleeson, to argue against the government’s position and address whether Flynn should be held in contempt. Sullivan also said he would accept outside briefs on the matter.
Sullivan was asked Thursday by a three-judge panel of the federal appeals court in Washington to respond to Flynn within 10 days.
The composition of that panel may augur well for Flynn and for Trump, who has taken up the case as a rallying cry against former Obama administration officials he claims set up his former aide.
One of the appellate judges, Neomi Rao, was appointed to the court by Trump himself and has taken positions in favor of the president in other cases. Another of the judges, George H.W. Bush appointee Karen Henderson, also sided with Trump in a February ruling protecting his top aides from congressional subpoenas, though that decision was later overturned. The third judge on the panel, Robert Wilkins, was named to the bench by Barack Obama.
Though Flynn pleaded guilty to lying to the Federal Bureau of Investigation agents about his contacts with the Russian ambassador in December 2016, he later sought to withdraw his plea and argued he had been the victim of government misconduct. Attorney General William Barr’s Justice Department said it was dropping the case because the agents did not have a proper investigative purpose in questioning Flynn and his lies were not “material” to the then ongoing probe of Russian interference in the 2016 election.
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