Judge Is Ordered to Explain His Hesitation to Dismiss Flynn Case

WASHINGTON — A federal appeals court panel has ordered a trial judge to explain why he is hesitating to grant the Justice Department’s request that he dismiss the criminal case against President Trump’s former national security adviser Michael T. Flynn.

In a terse order on Thursday, the panel gave the judge, Emmet G. Sullivan of the Federal District Court for the District of Columbia, 10 days to respond to a petition by Mr. Flynn’s lawyer asking the panel to force Judge Sullivan to dismiss the case immediately. The judge had scheduled briefs and oral arguments that meant he would make no decision before mid-July.

The extraordinary order by the panel was the latest twist in a bizarre legal and political drama that has enveloped the prosecution of Mr. Flynn, who twice pleaded guilty to lying to investigators in the Russia inquiry about his conversations in December 2016 with the Russian ambassador to the United States.

“Everything about this case is unusual,” said David A. Sklansky, a Stanford professor of criminal law. “It’s unusual to ask a higher court to direct a lower court to do something before the lower court has had a chance to make up its own mind in the first instance — and that includes whether to dismiss a case.”

This month, at Attorney General William P. Barr’s direction, the Justice Department asked Judge Sullivan to drop the case, putting forward as justification a disputed legal theory that Mr. Flynn’s false statements were immaterial to any legitimate investigation.

Mr. Barr had earlier intervened to seek a lower sentence for another Trump associate prosecuted in connection with the Russia investigation, Roger J. Stone Jr., than ordinary guidelines called for. In both cases, Mr. Barr’s moves prompted accusations that he was politicizing the department by showing special favor to presidential favorites.

Judge Sullivan responded to the abrupt reversal in the Flynn case by appointing a former mafia prosecutor and retired federal judge in Brooklyn, John Gleeson, to argue against the Justice Department’s new position. He also asked Mr. Gleeson to evaluate whether Mr. Flynn committed criminal contempt of court in the form of perjury, apparently because Mr. Flynn has made contradictory factual statements under oath in court, by admitting he knowingly lied and then saying he did not lie.

On Tuesday, Mr. Flynn’s defense lawyer, Sidney Powell, filed a petition with the appeals court seeking an order that would short-circuit Judge Sullivan’s review. She argued that her client had been mistreated and that the judge was legally required to drop a case if that was what the Justice Department decided to do.

Ms. Powell’s petition, as has been her practice, was littered with hyperbolic language unusual for a legal document. The request for an immediate intervention initially appeared to be a long shot since Judge Sullivan has not declined to dismiss the case, but rather is conducting a review before making a decision. Mr. Barr had acknowledged in an interview with CBS News that dropping the case is not automatic and the judge “does have a say.”

But cases are randomly assigned to judges on the circuit, and Ms. Powell’s petition drew what may be an unusually favorable panel, the order on Thursday revealed.

Should the panel issue an order to Judge Sullivan that he drop the Flynn charge without further consideration, it would not necessarily be the end of the matter, according to Mr. Sklansky and another criminal law professor, Samuel W. Buell of Duke University.

For one thing, they said, Judge Sullivan is likely to appoint a lawyer to represent him before the appellate panel, and that lawyer could ask the full appeals court or the Supreme Court to reverse any order shutting down his review.

Mr. Sklansky also said it would not necessarily take a decision by Judge Sullivan to push the matter further. He pointed to a rarely invoked rule that permits the full appeals court to order a rehearing on its own, without any petition, if the judges deem the matter to involve “a question of exceptional importance.”

On the other hand, if the three-judge panel decides against issuing an order to Judge Sullivan — or is overruled by the full court — Mr. Flynn’s legal team can appeal, too.

The immediate intervention the Flynn team is seeking — called a writ of mandamus — is disfavored and is supposed to be reserved for rare occasions “when a judge is off the reservation about the law,” Mr. Buell said. The general rule is that appeals courts are supposed to wait to intervene until a case has been decided and one side appeals.

“The idea of mandamusing a judge to tell him who he is or isn’t allowed to hear from when he’s deciding an issue is ridiculous,” Mr. Buell said. “But with what’s going on in the federal judiciary right now, I’ve given up predicting what ridiculous issues will and won’t be treated as nonridiculous.”

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