Former Donald Trump national security adviser Michael Flynn suffered a legal blow on Monday as a federal appeals court ruled the criminal case against him can continue for now, despite the Justice Department's motion to dismiss it.
The US Court of Appeals for the DC Circuit ruled, 8-2, to deny Mr Flynn's request to dismiss charges that he lied to the FBI about his communications with former Russian Ambassador to the US Sergey Kislyak in late 2016 and early 2017.
Mr Flynn had previously pleaded guilty to the charges before withdrawing that plea and asserting his prosecution was politically motivated. The top brass at Mr Trump's Justice Department agreed, arguing Mr Flynn's lies were not "material" to its investigation at the time into contacts between the Trump campaign and Russia.
The federal district judge in the case, Emmet G Sullivan, is now free to question prosecutors about why they moved in May to dismiss the charges against Mr Flynn after previously securing a guilty plea, a highly unusual action that outside observers have suggested was undertaken to appease the president.
Mr Sullivan and Mr Flynn's legal counsel have for months been involved in a complicated legal back-and-forth after Mr Flynn backed away from his guilty plea at the 11th hour earlier this year.
At a sentencing hearing in 2018, Mr Sullivan openly expressed his “disgust" and "disdain” for Mr Flynn's behaviour as an "unregistered agent of a foreign country while serving as the national security adviser to the president of the United States," referring to another case involving Mr Flynn's previous lobbying work for the Turkish government.
Mr Flynn was never charged with violating foreign agent registration laws.
The case Mr Sullivan is overseeing has taken many turns over the last eight months.
First, in January, Mr Flynn sought to revoke his guilty plea.
Throughout the winter and spring, Mr Trump publicly called for his former aide and friend to be cleared of all charges of lying about his contacts with Russians during the 2016 presidential campaign and Mr Trump's transition period in 2016 and early 2017.
In May, after a four-month internal review ordered by Attorney General William Barr, the DOJ acquiesced, filing a document in court backing Mr Flynn's motion to dismiss and saying the criminal case against Mr Flynn lacked "any legitimate investigative basis."
But Mr Sullivan, now in charge of the case, did not grant that motion, and instead appointed another former federal judge to review the DOJ's motion to dismiss the case.
That retired judge, John Gleeson, authored a scathing amicus brief indicating that the DOJ's decision to drop Mr Flynn's case was politically motivated.
Mr Flynn then appealed to a three-judge panel of the DC Circuit Court, which ruled in his favour in June that the DOJ could in fact move forward dropping the case, despite Mr Sullivan's objections.
Monday's ruling by the fuller panel of the DC Circuit Court that Mr Sullivan can continue questioning prosecutors overrules the previous decision.
Appeals court judge Thomas Griffith wrote that his panel would withhold its judgement until Mr Sullivan completed his review.
“Today we reach the unexceptional yet important conclusion that a court of appeals should stay its hand and allow the district court to finish its work rather than hear a challenge to a decision not yet made. That is a policy the federal courts have followed since the beginning of the Republic,” Mr Griffith wrote.
Allies of Mr Trump have taken up Mr Flynn's legal cause as a stand against the so-called "deep state" of career bureaucrats that they believe is intent on undermining the Trump presidency.
"The truth is that the Deep State and some senior Obama administration officials set up Flynn in hopes of using him and others to cripple the Trump presidency from the start," Mr Flynn's deputy at the National Security Council in 2017, KT McFarland, wrote in a Fox News column earlier this year.
Democrats have pointed to Mr Flynn's case as yet another example of a Trump associate breaking the law and trying to use the levers of the president's power to escape accountability.
"Your tenure is marked by a persistent war against the [Justice] Department’s professional core in an apparent effort to secure favours for the President," House Judiciary Chairman Jerry Nadler said at a hearing with Mr Barr in July.
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