Judge Robert L. Wilkins, a 2014 appointee of President Barack Obama, dissented. He said Judge Sullivan should be permitted to complete his review of the prosecutor’s actions and whether they are impermissible before deciding whether to grant the government’s motion to dismiss, citing the unusual circumstances of the Justice Department’s “abrupt reversal on the facts and the law” and the opacity of what happened.
In a dissenting opinion, he said his colleagues had made a series of mistakes that rendered a “dead letter” the portion of the rule of criminal procedure that said cases may only be dismissed with a judge’s approval, or “leave of the court” — at least in cases where the defense and prosecution agrees that a case should be dropped.
Instead, he argued, the law requires that Judge Sullivan be permitted to rule — and if Mr. Flynn and the Justice Department do not like what he decides, they can then file an appeal.
“The district court must be given a reasonable opportunity to consider and hold a hearing on the government’s request to ensure that it is not clearly contrary to the public interest,” he wrote. “I therefore dissent.”
The ruling could effectively end the case, if Judge Sullivan acquiesces. But even if he instead asks the full appeals court to vacate the order and rehear the matter — or the full court decides to intervene on its own — the ruling seemed likely at a minimum to disrupt his plan to hold a hearing on July 16 on whether to dismiss the case.
The outsider whom Judge Sullivan had appointed to critique the Justice Department motion — John Gleeson, a former federal judge — had argued that its arguments for dropping the case were baseless and a “pretext” for an illegitimate political intervention on behalf of a presidential favorite, and urged Judge Sullivan to instead sentence Mr. Flynn.'>>>
https://www.nytimes.com/2020/06/24/us/politics/michael-flynn-appeals-court.html?action=click&module=Top%20Stories&pgtype=Homepage
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