Federal district court Judge Emmet Sullivan filed a petition on Thursday seeking a review by the full D.C. Circuit Court regarding the Justice Department’s motion to dismiss the case against former Trump administration National Security Advisor Michael Flynn.
In a 2-1 decision last month, a three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia ruled that the DOJ’s decision in May to drop its charges against Flynn should have marked the end of the case.
Further, the appeals court held Sullivan was in the wrong to continue it.
In a highly unusual move, Sullivan had responded to the DOJ’s decision to end the case by appointing a former federal judge to file a brief arguing why the prosecution should remain in place.
Flynn then appealed to the D.C. Circuit Court before Sullivan made his final ruling on the matter, arguing the judge was acting as a de facto prosecutor.
In his Thursday court filing, Sullivan contended that the three-judge panel usurped his authority as a trier of fact in the case.
Sullivan’s attorneys wrote the circuit court’s ruling in favor of Flynn marked a “dramatic break from precedent that threatens the orderly administration of justice.”
“It is the district court’s job to consider and rule on pending motions, even ones that seem straightforward,” the legal brief reads.
“This Court, if called upon, reviews those decisions — it does not preempt them.”
Sullivan’s team defended the judge’s decision to appoint a former federal judge to make the case against dismissal.
“Judicial decisions are supposed to be based on the record before the court, not speculation about what the future may hold,” the petition reads.
BREAKING: Federal Judge Emmet Sullivan decides he will not accept a 3-2 circuit court ruling instructing him to drop Michael #Flynn case. Sullivan is now requesting a hearing before the entire 11 judge panel. Flynn is not out of the woods yet. @FoxNews pic.twitter.com/PW1HOvPYXP
— David Spunt (@davidspunt) July 9, 2020
“All the district court has done is ensure adversarial briefing and an opportunity to ask questions about a pending motion” to dismiss the case, it adds.
Flynn plead guilty in December 2017 to lying to the FBI about conversations he had with then-Russian Ambassador to the U.S. Sergey Kislyak in the transition period before President Donald Trump took office.
In January, the retired three-star general sought to withdraw his plea based on alleged misconduct by the FBI.
In the DOJ’s motion to dismiss the case, federal prosecutors argued that Flynn’s behavior as the incoming national security advisor was appropriate.
They said that his calls were not material to the FBI’s underlying counterintelligence investigation about Russian interference in the 2016 election.
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