In July, Flynn
won a 2-1 decision before a three-judge panel, which held that Judge Emmet Sullivan’s decision to invite a amicus curiae brief from a retired judge (with an anti-Trump bias) violated the separation of powers in the Constitution.
The brief would advise the court as to whether Flynn should be held in criminal contempt of court for withdrawing his guilty plea — a right every defendant theoretically possesses.
The Department of Justice sought to drop the charges after a review of the case by U.S. Attorney Jeffrey Jensen found that the FBI had failed to turn over potentially exculpatory evidence showing investigators believed Flynn had not lied, that he was not suspected of prior wrongdoing, and that they discussed whether they were attempting to set him up to be fired.
amicus brief, field by retired John Gleeson, sought a broader investigation of the motives of the Department of Justice in dropping the charges — one that could theoretically be abused to create new controversies around the Trump administration.
Sullivan appealed for an
en banc rehearing, and won an 8-2 decision to overturn the writ. The D.C. Circuit also denied Flynn’s effort to have Sullivan — who had earlier accused Flynn of treason, and had to apologize — reassigned from the case.
wrote that Flynn “has not established that he has “no other adequate means to attain the relief he desires,” and that he could always challenge the district court’s final decision.
In their dissent, Judges Neomi Rao and Karen Henderson — who granted Flynn the writ of mandamus the first time around — wrote: “The majority gestures at the potential harms of such a judicial intrusion into the Executive Branch, but takes a wait-and-see approach, hoping and hinting that the district judge will not take the actions he clearly states he will take.”
It remains unclear whether the D.C. Circuit’s ruling will hold or whether Flynn will appeal to the Supreme Court.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). His new book, RED NOVEMBER , tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.