A three-judge federal appeals court panel sided with the Justice Department and Michael Flynn on Wednesday, ruling 2-1 that the district judge must drop charges.

U.S. District Judge Emmet Sullivan had initially balked at the Justice Department’s request to drop charges against Flynn, President Donald Trump’s former national security adviser. Flynn had originally pleaded guilty to a felony false statement charge in special counsel Robert Mueller’s investigation into Russian meddling in the 2016 U.S. election. He later withdrew the plea.

The Justice Department cited new evidence in asking for the charge to be dismissed, which was publicly supported by Trump. Sullivan instead ordered a hearing for next month and asked for an arbiter to write a brief on the situation.

Appeals Court Judge Neomi Rao, citing legal deference that the Justice Department was acting in good faith, said there was no good reason for Sullivan to doubt its motives. She was joined by Karen Henderson, both Republican appointees.

“Each of our three co-equal branches should be encouraged to self-correct when it errs,” Rao said in the ruling. “If evidence comes to light calling into question the integrity or purpose of an underlying criminal investigation, the executive branch must have the authority to decide that further prosecution is not in the interest of justice. This is not the unusual case where a more searching inquiry is justified.”

In dissent, Appeals Judge Robert Wilkins said the court was jumping the gun, ruling before Sullivan has made a decision on the case.

“This appears to be the first time that we have issued a writ of mandamus to compel a district court to rule in a particular manner on a motion without first giving the lower court a reasonable opportunity to issue its own ruling,” Wilkins said. It is “the first time any court has held that a district court must grant ‘leave of court’ pursuant to Federal Rule of Criminal Procedure 48(a) without even holding a hearing on the merits of the motion.”

It initially appeared the panel was reluctant to intervene in Sullivan’s action during its hearing on June 12. Judges questioned why the Justice Department needed it to make a ruling before next month’s hearing.

Now, Sullivan or any of the panel judges could ask for the full appeals court to reconsider the decision or approach the U.S. Supreme Court.

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