Judge turns prosecutor as he insists on keeping Flynn case alive

Judge Emmet Sullivan

A federal judge who turned himself into a prosecutor in the Michael Flynn case has asked for a rehearing by a full appeals court after a three-judge panel ordered him to accept the Justice Department's motion to dismiss the case.

A lawyer for Judge Emmet Sullivan said it's his client's job to "to consider and rule on pending motions."

The appeal, however, overlooks the fact that Sullivan has declined for weeks to rule on the motion.

The Washington Examiner reported Sullivan's lawyer charged that the appeals court can review decisions after they are made but should not "preempt them."

Judge Neomi Rao, a 2019 Trump appointee, authored the opinion of the three-judge panel ordering Sullivan to dismiss the case. She was joined by George H.W. Bush appointee Judge Karen Henderson.

Judge Robert Wilkins, appointed by President Barack Obama, issued a dissenting opinion.

Rao wrote: "In its motion, the government explains that in light of newly discovered evidence of misconduct by the Federal Bureau of Investigation, the prosecution can no longer prove beyond a reasonable doubt that any false statements made by Flynn were material to a legitimate investigation."

The judge said it is "plainly not the rare case where further judicial inquiry is warranted."

"To begin with, Flynn agrees with the government’s motion to dismiss, and there has been no allegation that the motion reflects prosecutorial harassment," Rao said. "Additionally, the government’s motion includes an extensive discussion of newly discovered evidence casting Flynn’s guilt into doubt. … Insufficient evidence is a quintessential justification for dismissing charges."

Flynn, a retired lieutenant general, briefly served as President Trump's national security adviser.

He withdrew his plea of guilty to the charge of lying to FBI agents in special counsel Robert Mueller's Russia collusion investigation, claiming he was the victim of a "perjury trap."

Evidence recently unsealed in the case confirmed his claim, showing FBI agents -- after the bureau was prepared to close the investigation for lack of evidence -- discussing how to get him to lie.

The Justice Department moved to drop the charges, but Sullivan refused to sign off on the motion. Instead, he appointed a retired judge to argue against the DOJ, and the fight now is at the appellate court.