Emmet Sullivan Judge Emmet Sullivan of the U.S. District Court for the District of Columbia. (Photo: Diego M. Radzinschi/ ALM)

Updated 12:45 p.m.

A federal appeals court said Thursday it would take up the U.S. Justice Department's disputed move to drop the Michael Flynn prosecution, erasing a panel decision that said the trial judge had no choice but to dismiss the case against the former Trump national security adviser at the request of U.S. Attorney General William Barr.

The decision by the U.S. Court of Appeals for the D.C. Circuit prolongs a clash between the Justice Department and U.S. District Judge Emmet Sullivan in Washington, who refused to immediately dismiss the case against Flynn after the Justice Department said Flynn never should have been prosecuted in the first place.

The appeals court set argument for Aug. 11.

Flynn twice pleaded guilty to lying to the FBI about communication with the Russian ambassador to the United States in the run-up to the Trump inauguration. In its unusual bid to drop the case, the Justice Department argued that the FBI lacked a valid basis for conducting the January 2017 at the core of the false-statements prosecution.

That move came just months after Barr intervened in the sentencing of Roger Stone to overrule career prosecutors and recommend a shorter prison term for Trump's longtime friend. On Wednesday, appearing before the House Judiciary Committee, Barr pushed back against claims that he was stepping into prosecutions to the benefit of Trump's friends and associates.

In the Stone and Flynn prosecutions, Barr said he had "determined that some intervention was necessary to rectify the rule of law to make sure people are treated the same."

"I agree the president's friends don't deserve special breaks, but they also don't deserve to be treated more harshly than other people, and sometimes that's a difficult decision to make, especially when you're going to be castigated for it," Barr said.

Prosecutors cannot on their own dismiss a criminal case. The dispute over the Flynn case tests how far judges can go to scrutinize a request by the government to dismiss a case.

Sullivan appointed an outside lawyer, John Gleeson, a Debevoise & Plimpton partner and retired federal judge, to offer recommendations to the court. Weeks ago, Gleeson said Sullivan was fully within his power to move forward to sentence Flynn.

Sullivan's plan to hold a hearing in the Flynn case was put on hold, pending the outcome of the D.C. Circuit litigation.

Flynn appealed Sullivan's appointment of Gleeson, and the Justice Department has backed Flynn. A divided three-judge panel in June ordered Sullivan to dismiss the Flynn case. That panel decision, led by Trump-appointed Judge Neomi Rao, was wiped out after the D.C. Circuit said it would hear the case en banc.

The D.C. Circuit has 11 active judges, but only 10 will make up the en banc court.

Seven of those judges, including the chief judge, Sri Srinivasan, were appointed under Democratic presidents. In addition to Rao, Trump has appointed two other D.C. Circuit judges: Gregory Katsas and Justin Walker.

Katsas has recused, according to Thursday's order. Walker, who was confirmed in June, has not yet taken the bench.

 

Read more:

Barr's Justice Dept. Battles Flynn Judge Over His Challenge to DC Circuit Ruling

Judge Emmet Sullivan Contests DC Circuit Decision Ordering Dismissal of Flynn Case

Divided DC Circuit Orders Judge to Dismiss Flynn Case at Trump DOJ's Request

Michael Flynn Should Be Sentenced for Lying to FBI, Court-Appointed Amicus Tells Judge

24 Former Federal Judges Support Emmet Sullivan in Flynn's DC Circuit Challenge

Barr's Move to Drop Flynn Case Puts Spotlight on 1977 US Supreme Court Ruling

 

This report was updated to note that Judge Gregory Katsas has recused.