The decision Monday by the U.S. Court of Appeals in Washington followed a rehearing of an earlier ruling in favor of Flynn, who pleaded guilty to lying to federal agents in the early days of the Russia probe.
The decision is a victory for U.S. District Judge
Trump has repeatedly criticized the case against Flynn as well as the underlying investigation into Russia’s interference in the 2016 election to help him win. The case has become a cause celebre among conservative commentators, who claim Flynn was unfairly targeted by
The appeals court said the order Flynn sought directing Sullivan to act is rarely used and only in circumstances where a petitioner has no other recourse. In Flynn’s case, Sullivan hasn’t yet held a hearing on the government’s motion to dismiss the case.
Flynn “has not cited any case in which our court, or any court, issued the writ to compel a district court to decide an undecided motion in a particular way -- i.e., when the district court might yet decide the motion in that way on its own,” the majority said.
The appeals court reconsidered the case in a rare “en banc” hearing with a
In a dissenting opinion Monday, Judge
“The majority gestures at the potential harms of such a judicial intrusion into the Executive Branch, but takes a wait-and-see approach, hoping and hinting that the district judge will not take the actions he clearly states he will take,” Rao wrote.
The majority also denied Flynn’s request to assign a different judge to the case on the grounds that Sullivan had allegedly shown bias against him. In a dissenting opinion, Judge
Sullivan’s request for the rehearing “removes any doubt that the appearance of impartiality required of all federal judges has been compromised beyond repair,” Henderson wrote.
Flynn pleaded guilty in the early days of the Russia investigation. He sought to withdraw his plea and dismiss the case before the Justice Department said it was walking away from the prosecution.
(Updates with the Justice Department declining to comment in the fifth paragraph)
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