A federal appeals court on Thursday agreed to take a second look at whether the Justice Department can withdraw the criminal charges against Michael Flynn, keeping President Trump’s first national security adviser in legal jeopardy for at least a little while longer.
The U.S. Court of Appeals for the District of Columbia Circuit vacated last month’s split decision by a three-judge panel that ordered the charges dismissed. A new round of oral arguments now can proceed.
Oral arguments before the full court are scheduled for Aug. 11.
Mr. Flynn pleaded guilty twice to lying to the FBI about his conversations with Sergey Kislyak, Russia’s then-ambassador to the U.S., in late 2016 just before the Trump administration took over.
But the Justice Department, in a surprise move earlier this year, sought to abandon the Flynn case, which it had been pursuing since 2017.
The federal court and the Justice Department have been tussling ever since.
In a 2-1 decision last month, the court ruled U.S. District Judge Emmet G. Sullivan did not have the authority to block the Justice Department’s motion to abandon its prosecution of Mr. Flynn.
The judge who dissented was the lone Democratic-appointed judge on the panel. The D.C. Circuit is currently composed of seven judges appointed by three Democrats and four Republican appointees.
Justice Department lawyers said the FBI never should have interviewed Mr. Flynn as part of its probe into allegations of collusion between members of the Trump campaign and Russia operatives interfering in the 2016 election.
The FBI had no evidence Mr. Flynn could shed light on their probe, department lawyers wrote.
Judge Sullivan ordered extra scrutiny of the Justice Department’s decision and appointed an outside counsel to argue against dropping the case. Mr. Flynn’s lawyers responded with a petition to the D.C. Circuit asking it to force Judge Sullivan to accept the Justice Department’s request.
The panel agreed with Mr. Flynn, saying Judge Sullivan did not have the authority to buck the Justice Department’s request.
“In this case, the district court’s actions will result in specific harms to the exercise of the Executive Branch’s exclusive prosecutorial power,” Judge Neomi Rao, who was appointed to the D.C. Circuit by President Trump, wrote in the majority opinion.
Judge Sullivan appealed that decision earlier this month, asking the full court to review the appellate court’s ruling. In his filing, he claimed the court’s decision threatened “to turn the ordinary judicial process upside down.”
