A U.S. appeals court on Monday denied a bid by Michael Flynn, President Donald Trump’s former national security adviser, to immediately end the criminal case against him for lying to the FBI about his talks with a Russian official before Trump took office in 2017.
The U.S. Court of Appeals for the District of Columbia Circuit, rehearing an earlier decision by three of its judges, declined to issue an emergency order directing the judge hearing the case to grant the Department of Justice’s request for dismissal.
The 8-2 ruling allows U.S. District Judge Emmet Sullivan to hear arguments on whether he must grant the Justice Department’s request to drop the case.
The judge has said he is “not a rubber stamp” and wants to carefully scrutinize the Justice Department’s request before deciding whether to grant it.
The court said Flynn had not shown a clear violation of his constitutional rights, since all Sullivan has done so far is schedule a hearing and appoint a retired judge to present arguments for why the case should continue.
“Today we reach the unexceptional yet important conclusion that a court of appeals should stay its hand and allow the district court to finish its work rather than hear a challenge to a decision not yet made,” Circuit Judge Thomas Griffith wrote in a concurring opinion.
Sullivan could still decide to sign off on the request for dismissal of the case, the court said.
Flynn, a retired Army lieutenant general, pleaded guilty two times to lying to the FBI about his conversations with Russia’s then-ambassador, Sergey Kislyak, concerning U.S. sanctions imposed on Moscow under President Barack Obama.
Flynn was charged under former Special Counsel Robert Mueller’s investigation that detailed Russian interference in the 2016 U.S. election to boost Trump’s candidacy.
While awaiting sentencing by Sullivan, Flynn sought to withdraw his plea, switching lawyers to pursue an approach that accused the FBI of setting him up.
Trump has said Flynn was treated unfairly in the case.
Democrats have said the Flynn case is an example of Attorney General William Barr improperly meddling to help Trump’s friends and political allies.