(PresidentialWire.com)- Michael Flynn’s lawyers will head to court again on Tuesday.
Ten judges on the D.C. Circuit Court of Appeals will hear arguments over whether Flynn’s case should be dismissed immediately, as the Department of Justice is requesting. Their reasoning is that the FBI should’ve never interviewed Flynn, President Donald Trump’s former national security adviser, about Russia’s alleged influence in the 2016 presidential election.
And had he never been interviewed, he never would have plead guilty to lying to the FBI.
Flynn pleaded guilty nearly three years ago to lying to FBI agents about talks he held with a Russian ambassador during the transition period between when Trump was elected and when he took office.
Earlier this summer, a three-judge panel moved to quickly dismiss the case, but the full appeals court decided to hear arguments in the case.
The case at hand is whether a judge should have the power to intervene in a decision by the Justice Department to drop a prosecution of someone. The trial-level judge in the case, Emmett Sullivan of the DC District Court, decided the Justice Department’s request needed to be independently audited before he would drop the case.
Sullivan had planned to hold a hearing on the Justice Department’s request before the appeals court ultimately weighed in on the case. He was apparently considering whether he had the authority to sentence Flynn even if the prosecution didn’t support doing so. The judge was also considering whether to hold Flynn in contempt since he potentially perjured himself by swearing under oath on separate occasions that he was guilty, and then innocent.
The Justice Department is likely to argue that Sullivan acted incorrectly in the case, and that they have ultimate decision-making ability on who gets prosecuted and who doesn’t. That argument won the day with the three-judge panel of the appeals court.
As part of the 2-1 decision, Judge Neomi Rao wrote the majority opinion that stated that Sullivan “fails to justify the district court’s unprecedented intrusions on individual liberty and the Executive’s charging authority.”
This case is rare in that the DC Circuit doesn’t often hold full court hearings. However, this does mark the second time it will happen in a case related to the Mueller investigation. The first incident occurred only last week, when the court decided Congress has the right to sue and subpoena White House counsel Con McGahn.
Just looking at party lines alone, Flynn’s lawyers will face a challenge with the full appeals court. Judge Greg Katsas, who was appointed by Trump, is recusing himself from the arguments. That leaves seven judges who were appointed by Democrats versus only three who were appointed by Republicans.
If the court finds in Flynn’s favor, the case could be dismissed immediately, as the Justice Department desires. This would strip Sullivan of his power to question the department’s decision on prosecution.
If the court finds against Flynn, his criminal case could re-enter the court system and potentially last into 2021.
The court is unlikely to hand down a decision on Tuesday.