A federal appeals court on Monday overwhelmingly rejected a bid by Michael Flynn, President Donald Trump‘s first national security advisor, to force the prompt dismissal of the criminal case in which he had been convicted of lying to FBI agents.

In an 8-2 ruling, the appeals court judges indicated that Flynn’s request was premature, since U.S. District Court Judge Emmet Sullivan of Washington had not yet even ruled on the dismissal request by the Justice Department.

The decision by the U.S. Court of Appeals for the District of Columbia Circuit also said Flynn had failed to show that he had a clear right to have a different judge handle his case.

The ruling sends the case back for consideration by Sullivan. Sullivan could dismiss it, as requested, or reject that request and move toward sentencing Flynn. If he does not dismiss the case, his refusal is certain to be appealed.

A lawyer for Flynn and the Justice Department did not immediately respond to CNBC’s requests for comment on Monday’s ruling.

Flynn, a retired Army lieutenant general, in December 2017 pleaded guilty to lying to FBI agents about his conversations with Russia’s ambassador to the United States in the weeks leading up to Trump’s inaguration in January of that year.

He also agreed to cooperate with then-special counsel Robert Mueller’s investigation of Russian inteference in the 2016 presidential election.

But after hiring a new lawyer, Sidney Powell, in 2019, Flynn began making legal efforts to undo his guilty plea. The Justice Department opposed those efforts until this past spring, when, in a stunning about-face, it asked Sullivan to toss out the case.

In a filing seeking the dismissal, the then-interim U.S. attorney for the District of Columbia, Timothy Shea, argued that the FBI’s interview of Flynn was not justified by a counterintelligence investigation and that his lies about what he said to a Russian diplomat were not “material” to that probe.

Instead of promptly granting that dismissal, Sullivan asked a lawyer unconnected to the case to argue to the judge against the Justice Department’s motion, and allowied outside parties to weigh in on the matter.

Flynn soon afterward asked the appeals court to compel Sullivan to sign off on the dismissal request.

Flynn also asked that Sullivan be removed from the case. Flynn’s lawyers said that Sullivan had overstepped his authority by allowing outside parties to make legal arguments in the case.

At a hearing this month, Flynn’s lawyer Sidney Powell said that Sullivan has “discarded any semblance of the unbiased impartial adjudicator” he is expected to be.

Earlier this summer, a three-judge panel of the appeals court ruled in Flynn’s favor, saying that the case had to be dismissed.

But Sullivan then asked that the entire line-up of judges on the appeals court rehear the case.

It agreed to do so. And in Monday’s decision, the court ruled in the judge’s favor, saying that he should have more time to weigh the question of whether to dismiss Flynn’s case.

The court found, on the question of Sullivan’s fairness in the case, that none of the judge’s actions that had been cited by Flynn comes close to meeting the “very high standard” of “conduct . . . so extreme as to display clear inability to render fair judgment.”

Judge Thomas Griffith, in a concurring opinion in the decision, wrote, “In cases that attract public attention, it is common for pundits and politicians to frame their commentary in a way that reduces the judicial process to little more than a skirmish in a partisan battle.”

“The party affiliation of the President who appoints a judge becomes an explanation for the judge’s real reason for the disposition, and the legal reasoning employed is seen as a cover for the exercise of raw political power,” wrote Griffith, who was appointed to his seat by President George W. Bush, a Republican like Trump.

“No doubt there will be some who will describe the court’s decision today in such terms, but they would be mistaken.”



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