The D.C. Circuit Court of Appeals voted 8-2 to reject Flynn’s effort to dismiss the case and efforts by Flynn to remove District Court Judge Emmet Sullivan from the case for alleged bias.

By By JOSH GERSTEIN and KYLE CHENEY | POLITICO

A federal appeals court has dealt a setback to former Trump White House adviser Michael Flynn, ruling that a district court judge can proceed with a planned hearing on the Justice Department’s attempt to abandon the criminal false-statement case against Flynn.

The D.C. Circuit Court of Appeals, sitting en banc, voted 8-2 to reject Flynn’s effort to dismiss the case immediately. The court’s ruling Monday also rejected efforts by Flynn to remove District Court Judge Emmet Sullivan from the case for alleged bias.

The new decision effectively overturns a June ruling from a divided three-judge panel, who backed Flynn’s attempt to force an end to the prosecution.

Acting through a government-paid private lawyer, Sullivan took the unusual step of seeking full-bench rehearing of that decision. In that most recent round of the litigation, Flynn picked up no votes. The only judges to side with him Monday were the two Republican appointees who ruled in his favor in June: George W. Bush appointee Karen Henderson and Trump appointee Neomi Rao, each of whom filed a dissent.

The case appeared to produce acrimony on the powerful, Washington-based appeals court, as judges on each side accused those on the other of unprincipled reversals of some of their positions.

The majority opinion, which was unsigned, noted that the dissenters initially rejected Flynn’s request to have Sullivan’s case reassigned to another judge, but in Monday’s ruling said such a reassignment was merited.

And the dissenters noted that after agreeing to rehear the case at Sullivan’s request, the majority sidestepped the validity of that move by declaring that the broader court decided at its own initiative to take a fresh look at the dispute.

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Flynn pleaded guilty in 2017 to lying about his contacts with Russia’s U.S. ambassador in the weeks before Donald Trump took office and Flynn became national security adviser. After agreeing to a plea deal with special counsel Robert Mueller, the former Defense Intelligence Agency chief cooperated with Mueller’s team for about a year and a half before switching to a more combative legal posture and eventually seeking to back out of his plea.

Following Flynn’s reversal, Attorney General William Barr moved to drop the case altogether, citing improprieties by the FBI decision-makers who ordered the interview of Flynn. But Barr’s move prompted outrage among Justice Department veterans and Democrats, who accused Barr of acting to protect a political ally of the president.

Though motions to dismiss brought by prosecutors are typically perfunctory, Sullivan pumped the brakes on the process, appointing an outside adviser to review whether he had discretion to deny the dismissal. Flynn’s team quickly accused him of bias, noting that Sullivan was sharply critical of Flynn during earlier rounds of proceedings and suggesting his drive to prolong the prosecution was inappropriate.

Flynn’s attorney, Sidney Powell, then filed a motion with the appeals court to force Sullivan to dismiss the case — a rare request for a so-called “writ of mandamus” that would override Sullivan’s decisions.

But the appeals court said imposing a writ of mandamus is an extremely rare and delicate step reserved for cases in which a defendant has no other alternative. Here, Sullivan hadn’t even ruled on the motion to dismiss, the majority noted, before Powell sought to force his hand.

The Justice Department backed Flynn’s effort to force Sullivan to dismiss the case, emphasizing that even if Sullivan conducts a hearing and seeks input on his options, he’ll only have one at the end of his search: dismissal. In the meantime, DOJ noted, Sullivan may ask a series of probing questions about internal processes that the court is not entitled to seek.

The appeals court majority emphasized that Sullivan’s attorney, Beth Wilkinson, made clear that he had yet to decide what questions he might ask in a potential hearing. Rather, he might be satisfied by what the parties offer in written briefs. And she suggested that any assumptions about how Sullivan might rule are premature.

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