According to a new report from TheHill, a federal appeals court Tuesday appeared unsympathetic to arguments that it should order a district court judge to dismiss criminal charges against former national security adviser Michael Flynn.
Per TheHill, the full D.C. Circuit Court of Appeals reheard oral arguments about how the Flynn case should proceed at the lower court after the Department of Justice (DOJ) suddenly moved to withdraw its case against the former adviser to President Trump.
Most of the judges appeared concerned with an earlier decision from a divided three-judge circuit panel that would have forced the district court to approve the DOJ’s motion without holding a hearing.
At Tuesday’s hearing, which ran nearly four hours, lawyers for Flynn and the Trump administration were grilled by a 10-judge panel about their stance that the lower court has no right to question the DOJ’s decision to drop the charges by holding such a hearing.
“How is it a breach of the separation of powers for the government to be asked questions?” asked Judge Thomas Griffith, who was appointed to the appeals court by former President George W. Bush.
“What is the government worried about?” added Judge Cornelia Pillard, an Obama appointee.
Flynn’s attorney and the DOJ are arguing that District Court Judge Emmet Sullivan is bound by federal court procedural rules to accept the prosecutors’ decision to drop the criminal charges.
Jeffrey Wall, the acting solicitor general who argued the case Tuesday, insisted that in scenarios where the government decides to drop a prosecution, judges are prohibited from questioning the move, even in hypothetical situations where a defendant bribed prosecutors or was receiving favorable treatment because of political connections.
Wall also hinted that Attorney General William Barr may have based his decision to drop the charges on information that has not been made public, arguing it would be improper to force the executive branch to explain its legal decisionmaking in court.