US federal appeals court rehears ex-national security adviser Flynn's case

WASHINGTON - A US federal appeals court on Tuesday reheard the criminal case against Michael Flynn, President Donald Trump's former national security adviser who once pleaded guilty to lying to federal intelligence agents, to decide whether to drop the case as demanded by the Department of Justice (DOJ).

A ruling following the almost four-hour rehearing, which was not made immediately on Tuesday, would either end the Flynn case, or keep it alive in court by returning it to US District Judge Emmet Sullivan, Flynn's trial-level judge who is expected to continue postponing the case's dismissal by holding a hearing on the DOJ's demand, possibly extending the legal fight for weeks or even into 2021.

The rehearing by the full 10-judge panel of the US Court of Appeals for the District of Columbia Circuit wiped out a 2-1 ruling by a three-judge panel of the same court in late June ordering Sullivan to immediately grant the DOJ motion to clear Flynn.

While Flynn's attorney, Sidney Powell, argued Sullivan played a "pretty ministerial" role in refusing to drop the case when the DOJ and Flynn himself both agreed that the case should end, several judges appeared skeptical of arguments that Sullivan was not entitled to give the DOJ's move and motive behind it a second thought.

Judge Thomas Griffith refuted Powell and said "that means that the judge has to do some thinking about it," referring to Sullivan.

Solicitor General Jeffrey Wall, representing the DOJ, told the hearing that Attorney General William Barr may have additional information related to the decision of dropping the case that he didn't share with the court.

"And so what we put in front of the court were the reasons that we could, but it may not be the whole picture available to the executive branch," Wall said.

Flynn, a 61-year-old retired army general, was forced out by Trump in February after the guilty plea, making his 22-day tenure as national security adviser the shortest in US history. He was convicted in former special counsel Robert Mueller's investigation into alleged Russian interference into the 2016 US election.

When moving to undo Flynn's charges, the DOJ reasoned in May that the defendant should not have been interviewed by the Federal Bureau of Investigation (FBI) in January 2017 as it lacked "a legitimate investigative basis," and that Flynn's statements to the FBI -- which he later confessed were lies -- about his contacts with then Russian Ambassador to the United States Sergey Kislyak were not "material even if untrue."

Sullivan put the DOJ's bid on hold, and on May 13 asked retired New York federal judge John Gleeson to argue against the dismissal.

In a lengthy analysis dated June 10, Gleeson argued that Flynn should be sentenced for crimes including perjury, for he twice pleaded guilty but sought to withdraw the guilty plea in January 2020. Flynn was set to serve zero to six months in prison for lying.

The twists and turns surrounding the Flynn case dramatized the fight over power separation between executive and judicial branches, with the DOJ claiming it alone can decide when a defendant is prosecuted, while Judge Robert Wilkins, who dissented the June 2-1 ruling, arguing that Sullivan "must be given a reasonable opportunity to consider and hold a hearing on the Government's request to ensure that it is not clearly contrary to the public interest."