A federal appeals court in Washington will take a second look a judge’s effort to scrutinize the Justice Department’s decision to drop its case against President Trump’s former national security adviser Michael Flynn.

Michael Flynn

Former Trump National Security Adviser Michael Flynn twice pleaded guilty to lying to federal agents about his contacts with Russia’s ambassador in Washington before Trump took office in 2017. Carolyn Kaster/Associated Press

The full U.S. Court of Appeals for the D.C. Circuit agreed Thursday to revisit U.S. District Judge Emmet G. Sullivan’s plan to examine the politically charged matter, reviving the unusual case testing the limits of the judiciary’s power to check the executive branch.

The court’s brief order set oral argument for Aug. 11.

Sullivan requested a rehearing by a full complement of judges after a divided three-judge panel ordered him to immediately dismiss the case and said Sullivan was wrong to appoint a retired federal judge to argue against the government’s move to undo Flynn’s guilty plea.

In May, Sullivan refused to go along with the government’s request to end the criminal case against Flynn, who twice pleaded guilty to lying to federal agents about his contacts with Russia’s ambassador in Washington before Trump took office in 2017.

Instead, Sullivan asked retired federal judge John Gleeson to argue against the Justice Department’s request, prompting Flynn’s attorneys to take the rare step of asking the appeals court to intervene midstream. They also accused Sullivan of bias.

The judge then retained a high-profile trial lawyer to represent him before the appeals court.

The order from the court Thursday said lawyers on both sides should be prepared to address whether Flynn had “no other adequate means to attain the relief” he sought from the appeals court.

The initial ruling against Sullivan from the three-judge panel in late June cut short his plans to hold a hearing to examine the government’s decision.

Judge Neomi Rao, writing for the majority, found “this is not the unusual case where a more searching inquiry is justified.”

In his dissent, Judge Robert L. Wilkins said it was unprecedented and premature for the appeals court to shut down Sullivan’s review. Sullivan, he wrote, should have an opportunity to evaluate the Justice Department’s change of heart.

Trump celebrated the initial ruling in a tweet and told reporters Flynn was “treated horribly.”

Flynn’s attorneys had urged the full appeals court to let the initial dismissal order stand.

“The district court has hijacked and extended a criminal prosecution for almost three months for its own purposes,” Flynn attorneys Sidney Powell and Jesse Binnall told the court.

“To allow Judge Sullivan to delay and generate litigation against a criminal defendant is unconstitutional,” they added, because the “Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.”

Flynn, 61, was the highest-level Trump adviser convicted in special counsel Robert S. Mueller III’s investigation of Russian interference in the 2016 election. Flynn initially pleaded guilty and cooperated with Mueller’s inquiry.

Instead of proceeding to sentencing, Attorney General William P. Barr in January ordered a review of Flynn’s case. He then moved to drop the prosecution, saying new evidence showed the FBI interview of Flynn was conducted without “any legitimate investigative basis.” Therefore, any lies Flynn told about his contacts with Russia did not amount to a crime.

Flynn’s case has energized the president and his supporters, who say Flynn was set up by anti-Trump investigators in the FBI. But many current and former Justice Department officials view the reversal as a troubling sign of the department bending to pressure from Trump to protect his close advisers and friends.

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