A federal appeals court on Thursday ordered the judge overseeing the case against former national security adviser Michael Flynn to respond to a petition from Flynn’s legal team seeking to remove him from the case.
In a brief one-page order, the D.C. Circuit Court of Appeals ordered U.S. District Judge Emmet Sullivan to “file a response addressing the petitioners’ request.”
Judge Sullivan has 10 days to address Flynn’s legal brief. The court also invited the Justice Department to weigh in on whether Judge Sullivan should be reassigned.
The order also revealed that two Republican-appointed judges will oversee Flynn’s bid to have the charges he lied to the FBI dismissed.
Judges Karen Henderson, an appointee of President George W. Bush, Neomi Rao, an appointee of President Trump, and Robert Wilkins, who was appointed by President Obama, will hear Flynn’s appeal.
Flynn had pleaded guilty to lying to the FBI about his contacts with the former Russian ambassador just before the Trump administration took over. He later sought to withdraw that plea proclaiming his innocence.
The Justice Department earlier this month petitioned to end the case because FBI agents improperly targeted Flynn, but Judge Sullivan, an appointee of President Clinton, has resisted those efforts.
On Tuesday, Flynn’s attorney Sidney Powell filed an emergency petition to the appellate court seeking the immediate removal of Judge Sullivan, arguing that he is politically biased against President Trump’s former national security adviser.
The appearance of justice will be best served by having another judge — one who has not implied that [Flynn] is a traitor — conduct any further proceedings in the case,” Ms. Powell wrote referring to Judge Sullivan’s courtroom comments.
During an aborted sentencing hearing in 2018, Judge Sullivan suggested Flynn committed treason in an outburst from the bench.
Instead of granting the Justice Department’s bid to end the case, Judge Sullivan called for third party submissions about what the court should do in the Flynn case. He also appointed a former New York federal judge to review whether Flynn should be held in contempt.
John Gleeson, the former federal judge tapped to give the case a second look, has openly criticized the Trump administration’s handling of the Flynn case.
“The district judge’s latest actions … bespeaks a judge who is not only biased against petitioner but also revels in the notoriety he has created by failing to take the simple step of granting a motion he has no authority to deny,” Ms. Powell wrote.
