The U.S. Court of Appeals for the District of Columbia Circuit has ordered former Trump adviser Lt. Gen. Michael Flynn as well as the judge presiding over his case to prepare arguments on whether the judge should recuse himself for partiality or for becoming a party to the case.
The order highlights the anomalous state of the case. Both Flynn and the prosecutors nearly three months ago agreed that the criminal “information” against him—allegedly lying to the FBI—should be dismissed. But District Judge Emmet Sullivan refuses to do so.
The appeals courts three-judge panel ordered Sullivan to accept the case dismissal in June, but he appealed for a rehearing before the full court of 11 judges.
The appeals court vacated the three-judge order on July 30 and set a hearing for Aug. 11.
In its subsequent order on Aug. 5, the court told Flynn and Sullivan to “be prepared to address at oral argument the effect, if any, of 28 U.S.C. Sections 455(a) and 455(b)(5)(i) on” Sullivans petition for rehearing.
The parts of the statute listed by the court stated that a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned” and also when he “is a party to the proceeding.”
The order underlines Sullivans catch-22 situation, both Flynn and the Department of Justice (DOJ) noted in their written responses to his petition.
Only people with a “personal stake” in the proceedings can seek appellate review, the DOJ wrote in its July 20 response.
“A judge does not have—and under the [Constitutions] Due Process Clause, cannot have—such a stake,” the department stated.
Flynns lawyers noted in his response that if Sullivan indeed has a personal stake in the case, it would disqualify him as its judge.
Flynn was head of the Defense Intelligence Agency during the Obama administration and former national security adviser to President Donald Trump. In 2017, he pleaded guilty to lying to the FBI. In January, he moved to withdraw the plea.
In May, the DOJ moved to dismiss the case after a review uncovered documents suggesting the FBI questioned Flynn solely to elicit false statements from him, rather than for a legitimate investigative purpose.
A motion to dismiss usually marks the end of a case, but instead of granting it, Sullivan suggested he would allow third parties to weigh in on the dismissal. Flynns lawyer moved to oppose third-party involvement, but Sullivan dismissed the motion.
Flynn responded by asking the appeals court for an extraordinary intervention (writ of mandamus).
Sullivan doubled down and appointed former federal Judge John Gleeson as an amicus curiae (friend of the court), tasking him to develop arguments against the case dismissal. He then ordered a hearing on the matter.
Just days before his appointment, Gleeson had co-authored an op-ed arguing for Sullivans launching a “full, adversarial inquiry” into the dismissal and possibly denying it and sentencing Flynn.
The appeals courts three-judge panel, in a split 2–1 decision, granted Flynns mandamus, saying Sullivans planned hearing would havRead More From Source