Appeals court to reconsider order to dismiss criminal case of former Trump aide

President Donald Trump’s former National Security Adviser Michael Flynn leaves the E. Barrett Prettyman U.S. Courthouse on June 24, 2019 in Washington, DC.

Alex Wroblewski | Getty Images

A federal appeals court on Thursday tossed out its order that a trial court judge dismiss the criminal case against former national security advisor Michael Flynn, and said it will rehear arguments on the issue.

The ruling is a blow to both the retired Army lieutenant general Flynn and the Justice Department, which has asked the trial judge to drop the prosecution of him for lying to FBI agents about his conversations with a Russian diplomat in the weeks before the inauguration of President Donald Trump.

Flynn pleaded guilty in late 2017 to that charge.

But for more than a year he has sought to undo that guilty plea, and recently found support from the Justice Department in that effort.

The case’s judge, Emmet Sullivan of U.S. District Court in Washington, D.C., has not acted on the department’s motion to toss the case.

Instead, Sullivan appointed an outside lawyer to argued to him that the case should be continued, and proceed toward sentencing of Flynn. The judge also allowed outside parties to weigh in on the question of whether to dismiss the case.

Flynn’s lawyers opposed Sullivan’s foot-dragging on the dismissal request and related action, and asked an appeals court to force him to endose the dismissal.

A three-judge panel in the federal Circuit Court of Appeals in Washington in late June ordered Sullivan to dismiss the case after hearing arguments from lawyers for the judge, Flynn and prosecutors.

But Sullivan asked the full appeals court to reconsider that order, which is said Thursday it will do.

The order Thursday vacates the three-judge panel’s dismissal order.

The full line-up of judges on the appeals court set oral arguments for the so-called en banc reconsideration hearing on Aug. 11.

The court said that both sides should be read to address the question of whether there are “no other adequate means to attain the relief desired.”

That order implies that at least some judges on the panel believe Sullivan should be given the opportunity to rule on the dismissal request before an appeal is heard of his refusal to do so.

Sullivan’s lawyer Beth Wilkinson in her argument for an banc hearing had said that the prior ruling in Flynn’s favor “marks a dramatic break from precedent that threatens the orderly administration of justice.”

Flynn’s lawyers responded that the three-judge panel had acted appropriately when it first ruled to grant a request to force Sullivan to drop Flynn’s criminal charge in federal court.

Wilkinson declined CNBC’s request for comment.

Flynn’s lawyer Sidney Powell did not immediately respond to a request for comment.

The White House did not immediately respond to CNBC’s request for comment.

Flynn served as Trump’s first national security adviser for only several weeks. He was fired in February 2017 after lying to Vice President Mike Pence about the nature of his discussions before the inauguration with Sergey Kislyak, who at the time was Russian’s ambassador to Washington.

Flynn had claimed falsely, both to the FBI and Pence, that he and Kislyak had not discussed sanctions imposed on Russia by the Obama administration in retaliation for Russian interference in the 2016 presidential election.

When asked on July 13 about whether he might pardon Flynn, Trump said, “I don’t have a decision to make … until I find out what’s going to happen.”

The president earlier this month granted clemency to Roger Stone, a former Trump campaign aide whose 40-month prison term was commuted by Trump.

Stone was convicted last fall at trial of lying to Congress, obstruction and witness tampering.

Trump had fumed that his friend Stone was a victim of a “Russia hoax,” and has expressed the same view with regard to Flynn’s case.

Both Flynn and Stone were charged as part of former special counsel Robert Mueller’s probe of Russian interference in the 2016 election.

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