Russia on appeal: Michael Flynn's case back in court after Justice Department's move to drop charges

The D.C. Court of Appeals will decide how Flynn's case should proceed after the DOJ filed its motion to dismiss

Published August 11, 2020 12:35AM (EDT)

Former U.S. Attorney General William Barr (Getty Images/Salon)
Former U.S. Attorney General William Barr (Getty Images/Salon)

All 10 judges on the U.S. Court of Appeals for the D.C. Circuit will hear oral arguments Tuesday about whether the government should drop charges against President Donald Trump's first national security adviser Michael Flynn, who in 2017 pleaded guilty twice in federal court to lying to the FBI about his discussions with a top Russian official during the presidential transition

Flynn's case was upended this May when the Department of Justice abruptly called on the D.C. Circuit Court to drop the charges. U.S. District Judge Emmet Sullivan sought counsel from a retired federal judge following the extraordinary motion, but Flynn's personal lawyers took the matter to the court of appeals ahead of a decision.

In a surprising split decision, a three-judge panel led by Trump appointee Neomi Rao ruled in Flynn's favor. However, the appellate court chose to rehear the case "en banc" before its full panel of judges: the three judges from the initial ruling, plus their seven colleagues. Of the 10 judges, seven were appointed by Democratic presidents and three by Republicans.

The hearings, scheduled to begin Tuesday, will determine the course of action available to Sullivan. Experts have laid out essentially three possibilities. Will the judges side with the Justice Department and dismiss the case outright? Will they kick the case back to Sullivan given Flynn could still appeal his decision through other channels? Or will the court reassign the matter to a different judge should it decide that Sullivan can no longer rule on the contentious case with impartiality?

"The court has asked the parties to focus on the issue of whether there is any other adequate remedy besides a writ of mandamus," former U.S. Attorney Barbara McQuade told Salon, referencing the initial order handed down to Sullivan by the three-judge panel.

Mandamus is "a rare last resort," McQuade, who argued that Flynn still has "a perfectly adequate remedy" through appeal, said.

"Unless Flynn or DOJ can explain why that route is inadequate, I would fully expect the en banc court to deny the writ of mandamus and send the case back to Judge Sullivan to decide the motion to dismiss," McQuade said.

"The rule requiring 'leave of court' for dismissal is to protect defendants from harassment and the public from corrupt decisions to go easy on powerful people," she added. "I am almost certain the court will deny the writ of mandamus and send the case back to Judge Sullivan."

Though the question at hand is narrow, the case has become about much more than Flynn's fate. Trump and his allies, including Attorney General William Barr, have commandeered the case as a vehicle to counterattack alleged "deep state" officials over accusations that federal agents acted improperly when they investigated counterintelligence threats in 2016.

Further, Flynn's guilty pleas play a central role in the "QAnon" conspiracy theory, which casts the former three-star general — who served under former President Barack Obama — as a martyr, persecuted for his inside knowledge of the previous administration's alleged efforts to undermine Trump.

A number of the QAnon flock even believe Flynn may be "Q" himself, with some adding three "gold star" emojis to their Twitter pages as a nod to the retired general's military rank. Flynn fueled the rumors after Barr moved to dismiss his case, tweeting a July 4 video of himself and a group of family and friends swearing allegiance to Q. Several individuals tagged in the tweet have added the gold stars to their profiles, including two attorneys.

But Barr's move sent shockwaves through the legal world, with nearly 1,200 former Justice Department prosecutors and officials signing on to a petition to encourage Sullivan to hear the case out, in addition to other legal experts.

"There is nothing in the public record to justify this dismissal," McQuade told Salon at the time. "Flynn lied to the FBI about undermining U.S. foreign policy with Russia."

Barr, for his part, told CBS News in May that "people sometimes plead to things that turn out not to be crimes."

By Roger Sollenberger

Roger Sollenberger was a staff writer at Salon (2020-21). Follow him on Twitter @SollenbergerRC.

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Conspiracy Theories Donald Trump Michael Flynn Q Anon Robert Mueller Russia William Barr