A federal appeals court in Washington, DC, on Monday dealt a blow to the Justice Department’s quest to drop the case against former White House national security adviser Michael Flynn.
The US Court of Appeals for the DC Circuit overturned an earlier three-judge panel that sided with Flynn. The 10-judge en banc review broke 8-2 against the former adviser to President Trump and ruled against forcing US District Judge Emmet Sullivan to dismiss Flynn’s guilty plea.
“While the Government has filed a motion to dismiss and [Flynn] consents, there remains a case or controversy unless and until that motion is granted by the District Court,” the opinion says.
The court also refused to reassign the case to a judge other than Sullivan and upheld Sullivan’s appointment of a former judge to counter the Justice Department’s attempt to drop the case.
Unless the US Supreme Court intervenes, Sullivan will now rule on whether to dismiss Flynn’s case or move forward with sentencing after Flynn pleaded guilty in December 2017 to lying to the FBI.
Flynn, who briefly served as Trump’s national security adviser, was fired in February 2017 and then pleaded guilty to lying to the FBI about discussing sanctions and a UN vote in December 2016 with then-Russian Ambassador Sergey Kislyak.
Flynn says he did not intentionally lie, and the Justice Department said in May it would drop the case, finding FBI agents including Peter Strzok had no valid basis to interview Flynn days into Trump’s presidency.
The Justice Department said it wanted to drop the case because of investigative misconduct.
Transcripts of the calls between Flynn and Kislyak, released in May, show Flynn did discuss sanctions and the UN vote.
Republicans said the transcripts show “there was nothing improper” about the substance of the calls, which Flynn made with the knowledge of other Trump transition officials.
In pleading guilty to lying to the FBI, Flynn agreed to cooperate with special counsel Robert Mueller’s investigation, which ultimately found no evidence that Trump’s campaign colluded with Russia.
Flynn also avoided charges for admittedly working as an unregistered agent of Turkey and making false statements to the Justice Department about that work.
Flynn business partner Bijan Rafiekian was convicted last year on those charges and faced up to 15 years in prison before his conviction was overturned. The Justice Department is moving to retry Rafiekian.