A federal appeals court on Wednesday ordered a judge to grant the Department of Justice's (DOJ) unusual move to drop charges against former national security adviser Michael Flynn.
A three-judge panel on the D.C. Circuit Court of Appeals approved Flynn's petition to intervene in the case after a district court judge had tapped an outside counsel to argue against the DOJ's move.
The panel ruled 2-1, with two Republican-appointed judges carrying the majority, that U.S. District Court Judge Emmet Sullivan overstepped his authority in second-guessing the prosecutors' decision.
"In this case, the district court’s actions will result in specific harms to the exercise of the Executive Branch’s exclusive prosecutorial power," Judge Neomi Rao, who was appointed to the circuit court by President Trump, wrote in the majority opinion.
"If evidence comes to light calling into question the integrity or purpose of an underlying criminal investigation, the Executive Branch must have the authority to decide that further prosecution is not in the interest of justice," Rao added.
Judge Robert Wilkins, an Obama appointee, dissented from the decision, saying he would grant Sullivan the space to explore the DOJ's request for dismissal.
"It is a great irony that, in finding the District Court to have exceeded its jurisdiction, this Court so grievously oversteps its own," Wilkins wrote in his dissent. "This appears to be the first time that we have issued a writ of mandamus to compel a district court to rule in a particular manner on a motion without first giving the lower court a reasonable opportunity to issue its own ruling."
An attorney representing Sullivan before the circuit court did not immediately respond when asked for comment. Flynn's attorney also did not immediately respond when asked for comment.
The DOJ stunned observers last month when it dropped its charge that Flynn had lied to the FBI about his conversations with a Russian diplomat in late 2016. The move came after the former Trump adviser had pleaded guilty and agreed to cooperate with the special counsel's investigation into Russian meddling in the 2016 election.
Instead of rubber-stamping the motion, Sullivan appointed an outside counsel, former federal judge John Gleeson, to outline a counter-argument to the DOJ's move. Gleeson argued earlier this month that Sullivan should reject the DOJ's motion and accused Flynn of perjury in reversing his earlier guilty plea.
Gleeson did not immediately respond when asked for comment.