Former National Security Adviser Michael Flynn would likely prefer that the Justice Department successfully dismiss the case against him than rely on a pardon from President Trump, former federal prosecutor Andrew McCarthy told "Bill Hemmer Reports" Monday.
"I don't think he wants a pardon," McCarthy said of Flynn. "I think ... that he would rather get what he would take as vindication from the prosecuting authority that actually charged him. He'd much rather have Justice dismiss the case, but at the same time, they got to get that past the judge."
McCarthy was responding to the D.C. Circuit Court of Appeals 8-2 ruling following an en banc review that U.S. District Judge Emmet Sullivan is under no obligation to dismiss the criminal case against Flynn despite the Justice Department requesting he do so earlier this year.
Flynn had argued that Sullivan overstepped his authority by appointing a third-party amicus curiae to argue against dismissal and a three-judge panel had issued a writ of mandamus ordering Sullivan to throw out the case.
"I think where the court of appeals came out -- the D.C. Circuit -- was that even though he's threatened to do some pretty wild and crazy things, he actually hasn't actually done anything yet," McCarthy explained.
"The way they look at it, he hasn't ruled on the dismissal motion yet, he hasn't said he wouldn't grant it. Hasn’t had a hearing yet. So I think they were not going to jump in at this point, but they've said if he does things that are lawless down the road, they can address it then."
U.S. Circuit Judge Neomi Rao, a Trump appointee, and U.S. Circuti Judge Karen LeCraft Henderson, a George H.W. Bush appointee, dissented following the en banc review. Both were part of the three-judge panel ruling in June that ordered Sullivan to dismiss the case.
“In Flynn’s case, the prosecution no longer has a prosecutor,” Rao wrote. “Yet the case continues with district court proceedings aimed at uncovering the internal deliberations of the Department."
Fox News' Bill Mears and The Associated Press contributed to this report.