Report: Flynn judge won’t drop case, files for ‘en banc’ review

The judge in the case against Ret. Lt. General Michael Flynn is still not giving in.

Fox News reports that D.C. District Judge Emmett Sullivan is still “refusing to dismiss the criminal case” against Flynn — President Donald Trump’s former National Security adviser — even after being ordered to do so by the D.C. Circuit Court of Appeals.

“Untethered” and “unjustified”

Flynn was facing jail time for lying to the FBI when some surprising information was made public: according to the Wall Street Journal‘s editorial board, new documents were uncovered earlier this year that “vindicate[d]” Flynn, including one that suggested the bureau had planned to close its investigation into to the retired general after finding no evidence of “collusion” with Russia, but it reopened the case “after it received a transcript of Mr. Flynn’s conversation with the Russian ambassador to the U.S.”

The FBI subsequently called Flynn in for an interview that the Bill Barr-led Department of Justice later said “was ‘untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn,’ and…was not ‘conducted with a legitimate investigative basis,'” the Wall Street Journal reported.

In light of the new evidence, the DOJ moved to drop the case against Flynn in May, according to The Hill, prompting criticism from Democrats, who noted that Flynn had previously pleaded guilty to the charges. (He later attempted to rescind that plea, as the Journal noted.)

But the Justice Department has run into a roadblock in that regard: Judge Sullivan refused to call the case off, which led to a review by the D.C. Circuit Court of Appeals.

In a 2–1 decision last month, the Circuit Court ordered Sullivan to dismiss the case, as NPR reported. But it seems Sullivan just won’t let it go.

Abusing judicial power?

Now, according to Fox, the judge has filed a petition for an “en banc” review by Circuit Court. According to Sullivan, the court’s decision was wrong in that it tried to force his court “to grant a motion [to dismiss] it had not yet resolved…in reliance on arguments never presented to the district court.”

“All the district court has done is ensure adversarial briefing and an opportunity to ask questions about a pending motion,” Sullivan argued in his petition, according to Fox. “Outside the panel opinion, those actions have not been considered inappropriate — much less an extreme separation-of-powers violation justifying mandamus.”

Flynn’s legal team, for its part, has echoed arguments from Appeals Judge Neomi Rao, who, according to CNBC, “wrote in that panel’s decision that it was appropriate to order Sullivan to dismiss the case after he slow-walked his decision in order ‘to prevent the judicial usurpation of executive power.'”

Despite the court’s order, Sullivan still doesn’t seem willing to do his job, however.

All we can do now is sit back and see if the appellate court agrees to an en banc review. But according to Fox, even if it does, arguments probably would not be heard until the fall — and if such a review is denied, Sullivan could then appeal to the Supreme Court. It seems this unjust case against Flynn could drag on for quite some time yet.

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