Judge in Michael Flynn Case Asks for Full Appeals Court Review

Instead of granting the motion, Judge Sullivan appointed a former federal judge and onetime mob prosecutor, John Gleeson, to argue against it and invited legal experts to weigh in, suggesting that he was skeptical of the government’s rationale.

Experts broadly disputed the Justice Department’s assertion that Mr. Flynn’s lies were not material since the F.B.I. was on the verge of closing its investigation of him, noting that they bore on the broader counterintelligence investigation into whether Trump campaign officials had coordinated with Russia’s 2016 election interference. Judge Sullivan had previously ruled that Mr. Flynn’s lies were relevant to the inquiry.

His decision to appoint Mr. Gleeson then spurred Ms. Powell’s emergency filing with the appeals panel seeking a so-called writ of mandamus, with the Justice Department arguing that if the case was not dropped it would harm the executive branch’s exclusive prosecutorial power.

The dissenting judge in the panel’s 2-to-1 decision said Mr. Sullivan should be allowed to rule.

“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,” Robert L. Wilkins, a 2014 appointee of President Barack Obama, wrote.

The order had handed Mr. Flynn and the Justice Department a crucial victory as it meant that a hearing Judge Sullivan had scheduled for next week would not take place. The judge most likely would have pressed the Justice Department over its decision to drop the charge and why prosecutors who had worked at length on the case had not signed the motion.

In another development on Thursday, the Justice Department said it did not raise objections to Mr. Trump’s longtime friend Roger J. Stone Jr. beginning a 40-month prison sentence later this month. Mr. Stone had asked recently for a delay until Sept. 1 because of the coronavirus pandemic, citing health concerns, but a judge partly rejected his request, allowing him to put off the start of his sentence only until next week.

Mr. Stone was convicted of seven felonies in a bid to impede a congressional inquiry that threatened the president.