Appeals court orders Michael Flynn judge to respond to demand for dismissal of case against ex

Former White House National Security Advisor Michael Flynn leaves the Prettyman Federal Courthouse following a sentencing hearing in U.S. District Court December 18, 2018 in Washington, DC.

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A federal appeals court on Thursday ordered the judge handling the criminal case of President Donald Trump’s former national security advisor, Michael Flynn, to respond to a request by Flynn’s lawyers to dismiss the case.

The order came two days after Flynn’s lawyers asked the U.S. Circuit Court of Appeals for the District of Columbia to drop the case and assign any future court proceedings to another judge.

The Department of Justice two weeks earlier made the surprise move to abandon its own prosecution of Flynn, who had pleaded guilty to lying to the FBI about his conversations with then-Russian Ambassador Sergey Kislyak in the weeks before Trump’s inauguration.

But U.S. District Court Judge Emmet Sullivan did not immediately grant the DOJ’s motion to dismiss its case. Instead, he appointed a former federal judge to argue against the request, and submitted a schedule to allow third parties to submit arguments in the case.

Flynn’s lawyers had argued to the appeals court that Sullivan’s moves “reveal his plan to continue the case indefinitely, rubbing salt in General Flynn’s open wound from the Government’s misconduct and threatening him with criminal contempt.”

Sullivan has 10 days to respond to the appeals court’s order. Sidney Powell, an attorney for Flynn, did not immediately respond to CNBC’s request for comment on the order.

Flynn had appeared in Sullivan’s courtroom in December 2018 to be sentenced, but the retired lieutenant general opted to delay the proceeding after Sullivan warned Flynn may face jail time if he was sentenced before completing his cooperation with then-special counsel Robert Mueller’s investigators.

Months later, Flynn dismissed his legal team and hired Powell, a vocal Mueller critic, who soon began efforts to undo the criminal case. Powell accused prosecutors of withholding exculpatory information from Flynn, a claim that the Justice Department for months repeatedly denied.

The Justice Department’s request this month to dismiss the charge against Flynn was signed by Timothy Shea, interim U.S. attorney for D.C. at the time, and not by any of the prosecutors who had handled Flynn’s case up to that point.

The dismissal request has been highly controversial. Former prosecutors say it smacked of favoritism toward an ally of Trump, and some have specifically accused Attorney General William Barr of manipulating the justice system to help the president. Trump has frequently criticized the case against Flynn.

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