A federal appeals court on Thursday tossed out its order that a trial court judge dismiss the criminal case against former Trump national security advisor Michael Flynn, and said it will rehear arguments on the issue.
The ruling is a blow to the retired Army lieutenant general and the Justice Department, which has asked the trial judge to drop the charge.
But for more than a year, he has sought to undo the plea, and recently found support from top Justice Department officials.
The trial judge, Emmet Sullivan of U.S. District Court in Washington, D.C., has not acted on the department’s motion to toss the case.
Instead, Sullivan appointed an outside lawyer to argue that the case be continued, and proceed toward sentencing of Flynn. The judge also allowed outside parties to weigh in on the question of whether to dismiss the case.
The lawyer appointed by Sullivan, John Gleeson, said in a court filing that the Justice Department’s bid to abruptly drop the case after defending the legitimacy of the prosecution for years was “highly irregular conduct to benefit a political ally of the President.”
Flynn’s lawyers opposed Sullivan’s foot-dragging on the dismissal request and related actions allowing outside commentary in the case, and asked an appeals court to force him to endorse the dismissal.
A three-judge panel in the federal Circuit Court of Appeals in Washington in late June ordered Sullivan to dismiss the case after hearing arguments.
But Sullivan asked the full appeals court to reconsider that order.
The appeals court agreed Thursday to do so, saying a majority of the 10 judges who considered Sullivan’s request voted to approve it.
The order vacates the three-judge panel’s order that Sullivan dismiss Flynn’s case.
The full line-up of judges on the appeals court set oral arguments for the so-called en banc reconsideration hearing for Aug. 11.
The court said both sides should be ready to address the question of whether there are “no other adequate means to attain the relief desired.”
Its order implies that at least some judges on the appeals court believe Sullivan should be given the opportunity to rule on the dismissal request before an appeal is heard of his refusal to do so.