Flynn’s attorneys took the rare step of asking the D.C. Circuit last month to intervene midstream and force Sullivan to put an end to the case, in addition to accusing the judge of bias. The Justice Department on Monday joined Flynn in the request, telling the court that prosecutors, not judges, decide when to bring — and when to withdraw — criminal charges.
After the appeals court agreed to review Sullivan’s actions, the judge took the unusual step of hiring a high-profile trial lawyer to respond and explain his reasons for investigating whether dismissing the case is legally appropriate and in the public interest.
The panel reviewing the case next week consists of Judges Karen LeCraft Henderson, Robert Wilkins and Neomi Rao.