WASHINGTON — Mike Flynn might get to walk away scot-free after all.
In a surprise move Thursday evening, an appeals court ordered the judge in Flynn’s criminal case to explain his refusal to drop the prosecution against President Trump’s former national security adviser. Flynn had twice pleaded guilty to lying to the FBI during the Russia investigation, but Attorney General Bill Barr’s Department of Justice decided to drop the case.
The highly unusual order signals that a recent Hail Mary appeal filed by Flynn’s legal team actually has a fighting chance, legal observers told VICE News. Before, a lot of folks thought Flynn’s attempt to go over Judge Emmet Sullivan’s head, known in fancy legal-speak as a “writ of mandamus,” would mostly succeed in making Sullivan very, very angry.
“This order suggests that the court is taking seriously Flynn’s request for a writ of mandamus, and his argument that Judge Sullivan may not deny the government’s motion to dismiss,” said Barbara McQuade, a former U.S. Attorney in Detroit.
Now, it’s Judge Sullivan who must explain himself.
Sullivan, who has previously wondered aloud whether Flynn might have committed “treason,” has to justify himself to the higher court within the next 10 days.
The composition of the three-judge panel that issued this order should cheer Flynn’s legal team, legal observers said. Two are GOP appointees, including one named by Trump, Neomi Rao, who previously worked in Trump’s White House. Since her appointment to the bench, Rao has become known for her hardcore legal positions defending Trump from investigation.
“Good news for Flynn,” said Gene Rossi, a former prosecutor with the Eastern District of Virginia.
Flynn’s legal drama now looks set to play out over the summer in spectacular fashion no matter which way it goes, in the middle of Trump’s campaign for reelection.
Judge Sullivan is in the middle of trying to figure out how to handle the unprecedented attempt by Trump’s DOJ to sabotage its own prosecution of Flynn, despite his guilty plea.
The move has been criticized as a blatant attempt to shield one of Trump’s cronies, including by a group of more than 1,000 former prosecutors and ex-DOJ officials who wrote a legal brief to Judge Sullivan urging him to reject the request if he finds it wasn’t in the public interest.
That would present the bizarre spectacle of a federal judge ordering a defendant to accept his own guilty plea and perhaps take a prison sentence, even though the prosecutors, officially, want nothing more to do with the case.
Former prosecutors and independent legal observers have accused Barr of attempting to undo the consequences of former special counsel Robert Mueller’s Russia investigation, in which Flynn became an early target.
Flynn, a retired Army lieutenant general and Trump’s first national security adviser, agreed to plead guilty in late 2017 to lying about his interactions with former Russian ambassador Sergei Kislyak soon after the 2016 election and before Trump was sworn into office.
But Flynn later switched legal teams and launched an aggressive campaign to get the original plea thrown out — a cause that was taken up by a chorus of right-wing Trump supporters on cable television.
Judge Sullivan had already laid out a schedule to allow a retired former Judge named John Gleeson to argue the case against Flynn that Trump’s DOJ now refuses to make, including whether Flynn should be held in contempt of court for perjury after reversing his guilty plea.
But now, Flynn’s appeal could disrupt that plan, depending on which way the appeals court tumbles.
Flynn’s lawyer Sidney Powell, never one for understatement, touted the new order as a major victory, tweeting out an all-caps CONGRATULATIONS GENERAL banner complete with photoshopped fireworks.
But she may be celebrating too early, and some legal observers say it’s too soon to know what the appeals court is really thinking.
The terse, one-page order didn’t give legal observers much additional evidence to parse about which way it’s going — and, traditionally, there’s a high bar for a writ of mandamus to succeed.
“It’s difficult to tell” what’s about to happen, said Carl Tobias, an expert on the judicial system at the University of Richmond School of Law. The appeals court request for Judge Sullivan to explain himself could, possibly, “be as innocuous as wanting to get everything onto the table so they can deal with a difficult situation.”
Cover: In this Sept. 10, 2019 file photo, Michael Flynn, President Donald Trump's former national security adviser, leaves the federal court following a status conference in Washington. (AP Photo/Manuel Balce Ceneta)