Judge Sullivan isn’t done with Flynn just yet, case going to full court of appeals

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Last December, Judge Emmet Sullivan made clear what he thought about Michael Flynn’s claim of being “ambushed” by FBI investigators with a one-sentence ruling: “The court summarily disposes of Mr. Flynn’s arguments that the FBI conducted an ambush interview for the purpose of trapping him into making false statements.” The idea that Flynn—who has pleaded guilty twice to lying in connection with his phone calls to the former Russian ambassador—was trapped has been ludicrous all along. Flynn is guilty—and of a lot more than he has been charged with in court. The trivial charges of perjury were supposed to be the former national security advisor’s slap-on-the-wrist exchange for providing information that kept both Flynn and his son from facing far more serious charges.

Flynn’s only hope for avoiding sentencing doesn’t lie with any legal claim. It’s with the White House, and with Attorney General William Barr’s effort to give Flynn a pardon without Trump having to dirty his pardon pen by withdrawing the case. Two weeks ago, a three-person panel of the Washington, D.C. Court of Appeals shockingly went along with Barr and told Flynn to go home, grab a beer, and revel in the ability of Trump to run rampant over the law. But now Judge Sullivan has replied with a not-so-fast, sending the case back to the Washington, D.C. Court in full—where the outcome is likely to be considerably different.

Since Flynn landed in Sullivan’s court, the district judge has demonstrated a decided lack of patience with the four-star pain in the ass. In 2018, when Flynn first hinted at trying to escape the deal he had made with the special counsel’s office, Sullivan blasted him wide open, telling him “you sold your country out” and making it clear he found Flynn’s deal exceptionally generous.

So it was never very likely that Sullivan was just going to nod his head over a ruling authored by Trump-appointed Judge Neomi Rao. Especially when that ruling seemed laughable to everyone not named Michael Flynn.

Sullivan made it clear that he thinks about as much of Rao’s ruling as he does of Flynn’s attempts to weasel out of his original deal. In his petition for a rehearing, Sullivan calls the previous ruling “a dramatic break from precedent that threatens the orderly administration of justice.” He also notes that Rao undermined the interpretation of a writ of mandamus and undercut Supreme Court rulings on at least two points.

There seems little doubt that Sullivan will get the hearing he wants. And what it produces is likely to be interesting—and much less helpful to Flynn.