The court’s brief order set oral arguments for Aug. 11. The decision to rehear the case before a full complement of judges wipes out the June ruling from a three-judge panel that ordered Sullivan to immediately dismiss the case and said Sullivan was wrong to appoint a retired federal judge to argue against the government’s move to undo Flynn’s guilty plea.
In May, Sullivan refused to go along with the government’s request to end the criminal case against Flynn, who twice pleaded guilty to lying to federal agents about his contacts with Russia’s ambassador in Washington before Trump took office in 2017.
Instead, Sullivan asked retired federal judge John Gleeson to argue against the Justice Department’s request. That prompted Flynn’s attorneys to take the rare step of asking the appeals court to intervene midstream, and they accused Sullivan of bias.
The judge then retained a high-profile trial lawyer to represent him before the appeals court.
The order from the court Thursday suggests that the judges are seeking a narrowly focused argument on the question of whether Flynn should have waited to appeal until after Sullivan rendered a decision. The court told lawyers on both sides to be prepared at oral argument to address whether Flynn had “no other adequate means to attain the relief” he sought from the appeals court.
A majority of the 10 D.C. circuit judges to consider Sullivan’s request for rehearing agreed to the en banc review. The order does not state the vote of individual judges but indicates that Judge Gregory Katsas, who previously worked in Trump’s White House Counsel’s Office, did not participate.
The initial ruling against Sullivan from the three-judge panel cut short his plans to hold a hearing to examine the government’s decision.
Judge Neomi Rao, writing for the majority, found that “this is not the unusual case where a more searching inquiry is justified.”
In his dissent, Judge Robert L. Wilkins said it was unprecedented and premature for the appeals court to shut down Sullivan’s review. Sullivan, he wrote, should have an opportunity to evaluate the Justice Department’s change of heart.
Trump celebrated the initial ruling in a tweet and told reporters Flynn was “treated horribly.”
Flynn’s attorneys had urged the full appeals court to let the initial dismissal order stand.
“The district court has hijacked and extended a criminal prosecution for almost three months for its own purposes,” Flynn attorneys Sidney Powell and Jesse Binnall told the court.
“To allow Judge Sullivan to delay and generate litigation against a criminal defendant is unconstitutional,” they added, because the “Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.”
Flynn, 61, was the highest-level Trump adviser convicted in former special counsel Robert S. Mueller III’s investigation of Russian interference in the 2016 election. Flynn initially pleaded guilty and cooperated with Mueller’s inquiry.
Instead of proceeding to sentencing, Attorney General William P. Barr in January ordered a review of Flynn’s case. He then moved to drop the prosecution, saying new evidence showed that the FBI interview of Flynn was conducted without “any legitimate investigative basis.” Therefore, any lies Flynn told about his contacts with Russia did not amount to a crime, he said.
Flynn’s case has energized the president and his supporters, who say Flynn was set up by anti-Trump investigators in the FBI. But many current and former Justice Department officials view the reversal as a troubling sign of the department bending to pressure from Trump to protect his close advisers and friends.
Spencer Hsu contributed to this report.