In an absolutely unprecedented move, a federal appeals court made it clear Friday that it is not ready to dismiss all charges against former Trump administration national security adviser Michael Flynn, signaling that it will allow the district court judge hearing the case — Emmet G. Sullivan — to make his own decision, which could include sentencing Flynn to prison.
According to The Washington Post, two of the three judges on the appellate panel for the U.S. Court of Appeals for the D.C. Circuit made clear their reluctance to go along with dropping all charges against Flynn, as has been suggested by Attorney General William Barr and the Justice Department:
“Judges Karen Henderson and Robert Wilkins of the U.S. Court of Appeals for the D.C. Circuit seemed skeptical of Flynn’s argument that Sullivan cannot review the Justice Department’s abandonment last month of the long-running prosecution. Flynn pleaded guilty to lying to federal agents about his pre-inauguration contacts with Russia’s ambassador.”
Sullivan has noted in previous court appearances by Flynn that he believes two serious crimes were committed by the defendant: Perjury and contempt of court. Judge Sullivan has also strongly chastised Flynn in open court, telling him:
“I am not hiding my disgust, my disdain for this criminal offense.
“Arguably, you sold your country out.”
Sidney Powell, Flynn’s attorney, got into a back-and-forth with the two judges who were skeptical of ordering Sullivan to acquiesce to the wishes of the Department of Justice (DOJ), with Powell insisting that it was time to bring the matter to a close:
“The government has quit, and it’s time to leave the field. The toll it takes on a defendant to go through this is absolutely enormous.”
What Powell neglected to mention is that if Flynn hadn’t lied in the first place, he wouldn’t be in his current predicament.
Last month, Judge Sullivan refused to sign off on dropping the charges against Flynn. Instead, he appointed former New York federal judge John Gleeson to provide a court brief recommending what should be done next. Gleeson turned his brief in on Wednesday, sharply slamming the Justice Department for engaging “in highly irregular conduct to benefit a political ally of the President.”
Sullivan has scheduled a July 16 hearing to once again consider the DOJ’s request for dismissal of the charges against Flynn.
If Flynn is sentenced to prison, it seems likely that Donald Trump — based on his past remarks — will pardon him. But such a move could be politically risky at a time when the president’s poll numbers are already dropping like a rock.