A federal appeals court dealt Michael Flynn a setback on Monday, paving the way for fresh scrutiny of Donald Trump’s former national security adviser in a politically charged case that has stoked controversy in Washington.
In an 8-2 decision, the DC Circuit Court of Appeals reversed an earlier order directing a lower court to grant the US Department of Justice’s motion to dismiss criminal charges against Mr Flynn, who pleaded guilty in 2017 to lying to the FBI about his contacts with Russia’s then ambassador to the US.
He was one of the first Trump administration officials to co-operate with special counsel Robert Muellers’ investigation into Russian interference in the 2016 US presidential election.
Months after pleading guilty, Mr Flynn, a retired three-star general and former head of the Defense Intelligence Agency, hired new lawyers and sought to withdraw his plea. He was awaiting sentencing when the justice department intervened and filed a motion with the federal court in Washington to dismiss the charges.
The move prompted outrage from Democrats, who said William Barr, the US attorney-general, and the justice department were “politicised and thoroughly corrupt”.
In seeking to drop the case, Mr Barr argued that FBI agents should never have interviewed Mr Flynn at the White House in 2017 and that his calls with the Russian ambassador — in which Mr Flynn had urged Russia not to respond aggressively to the Obama administration’s sanctions for election interference — were proper.
Mr Barr later defended the move in testimony before a congressional panel, telling the House judiciary committee: “I agree the president’s friends don’t deserve special breaks, but they also don’t deserve to be treated more harshly than other people.”
Emmet Sullivan, the federal judge overseeing the Flynn case, did not immediately scrap the charges, and instead said he would allow outside groups and experts to file “friend of the court” briefs arguing for or against dismissal.
He also appointed a retired federal judge to “present arguments in opposition to the government’s motion to dismiss” and address why Mr Flynn “should not be held in criminal contempt for perjury”.
Mr Flynn appealed, and one month later, a federal appeals court ordered Judge Sullivan to dismiss the case, handing a major legal victory to Mr Flynn and the Trump administration.
Judge Sullivan asked the DC Circuit Court of Appeals reconsider the decision, which it agreed to do. In its decision on Monday, the court overturned the lower court’s ruling, putting the power back in the hands of Judge Sullivan.
One of the circuit court judges, Thomas Griffith, wrote in a concurring opinion that while “pundits and politicians” might “frame their commentary in a way that reduces the judicial process to little more than a skirmish in a partisan battle”, the court’s ruling had nothing to do with the “merits of the prosecution of General Flynn or the government’s decision to abandon that prosecution”.
Rather, he framed it as a question about the relationship between the judiciary and the executive branch of the US federal government.
“Today we reach the unexceptional yet important conclusion that a court of appeals should stay its hand and allow the district court to finish its work rather than hear a challenge to a decision not yet made,” he wrote.
The justice department and lawyers for Mr Flynn did not immediately respond to a request for comment.
Judge Sullivan has not held back in criticising Mr Flynn in the past, telling the former national security adviser as he postponed his sentencing in 2018: “Arguably you sold your country out. Arguably this undermines everything this flag over here stands for.”
Foreign meddling in US elections remains a salient issue, particularly as Mr Trump seeks re-election against Democratic rival Joe Biden.
At the weekend, the US director of national intelligence informed congressional leaders he was cancelling in-person election briefings or members of Congress, prompting outraged Democrats to accuse the Trump administration of trying to conceal Russian interference in November’s election.