In an 8-2 decision, the DC Circuit court of appeals ruled that Judge Emmett Sullivan does not have to grant prosecutors’ motion to dismiss the criminal case against Michael Flynn.
This effectively erases the decision of a three-judge panel, which had ordered Sullivan to toss the case.
“Quite simply, the only separation-of-powers question we must answer at this juncture is whether the appointment of an amicus and the scheduling of briefing and argument is a clearly, indisputably impermissible intrusion upon Executive authority, because that is all that the District Judge has ordered at this point.”
It continues “We have no trouble answering that question in the negative, because precedent and experience have recognized the authority of courts to appoint an amicus to assist their decision-making in similar circumstances, including in criminal cases and even when the movant is the government.”
In a dissenting opinion Judge Karen Henderson argues Judge Sullivan should have been disqualified from the case because his “conduct patently draws his impartiality into question.”
The case will now go back to District Judge Emmet Sullivan where it will hear arguments for and against dismissal.
Arguments will be made from the DOJ for dismissal as well as from appointed retired Judge John Gleeson, who has argued against dismissal.
If Sullivan decides against dismissing the charges, the case will move towards sentencing.