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Review being considered at request of district court judge-turned-prosecutor

A federal appeals court on Friday pressed pause on its order that a lower court judge dismiss the case against onetime Trump national security adviser Lt. Gen. Michael Flynn.

The Washington Examiner reported the U.S. Court of Appeals for the D.C. Circuit said it is giving Flynn and the Department of Justice 10 days to respond to the petition from District Judge Emmet Sullivan for a rehearing.

The appeals court ordered Sullivan to dismiss the case several weeks ago. He declined and instead asked the full appellate court for a review.

The ruling suspended the June 24 order to Sullivan to grant to DOJ’s motion to dismiss.

Sullivan essentially moved from the judge’s role to a prosecutor’s role when he refused the DOJ’s request to dismiss the case, which stemmed from special counsel Robert Mueller’s Russia collusion investigation.

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, 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.

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