- A federal appeals court ordered a judge to dismiss the criminal case against Michael Flynn, President Trumpâs first national security advisor.
- The ruling came in response to a request from Flynnâs lawyers, after Judge Emmet Sullivan did not promptly grant the Justice Departmentâs motion to dismiss the case.
- Flynn, a retired Army lieutenant general, had pleaded guilty to lying to the FBI about his conversations with Russiaâs ambassador in the weeks before Trumpâs inauguration in January 2017.
A federal appeals court Wednesday ordered a judge to dismiss the charge against President Donald Trumpâs former national security advisor Michael Flynn, who had pleaded guilty to lying to FBI agents.
The 2-1 ruling by the panel of appellate judges stressed the power of the Department of Justice, which has sought to drop its prosecution of Flynn, to make criminal charging decisions given its status as part of the executive branch.
The ruling came in response to a request for a so-called writ of mandamus, or judicial directive, from Flynnâs lawyers.
The defense attorneys asked the U.S. Circuit Court of Appeals for the District of Columbia Circuit after the trial judge did not promptly grant the Justice Departmentâs highly unusual motion to dismiss the case.
Instead, Judge Emmet Sullivan appointed a lawyer, former federal judge John Gleeson, to make arguments to him about why the case should not be tossed out. Sullivan also said he would consider arguments for or against the dismissal request from third parties not connected to the case.
Appeals court Judge Neomi Rao, in the decision for the majority Wednesday, wrote that the case is about whether a trial court judge can prolong a criminal case and appoint a so-called friend of the court such as Gleeson as a legal advisor after prosecutors have âexplained why a prosecution is no longer in the public interest.â
âOn that, both the Constitution and [prior legal] cases are clear: he may not,â wrote Rao, who was appointed by Trump.
It is not clear whether the ruling will be the last word in the case. A judge on the appeals court could ask for a review by all the courtâs judges. Such an review, known as an en banc hearing, is not usually granted in the D.C. circuit unless a case âinvolves a question of exceptional importance,â or is needed to âmaintain uniformity of the courtâs decisions,â
Beth Wilkinson, an attorney representing Sullivan in the appeals court proceedings, declined CNBCâs request for comment.
Like the Justice Departmentâs dismissal request, Sullivanâs lack of immediate agreement with it and Flynnâs request that an appeals court force Sullivan to comply were extremely unusual. An en banc review would add to the already odd nature of Flynnâs case.
Trump praised Wednesdayâs appeals court ruling, tweeting that it was âGreat!â
Great! Appeals Court Upholds Justice Departments Request To Drop Criminal Case Against General Michael Flynn!
— Donald J. Trump (@realDonaldTrump) June 24, 2020
Trump in an Oval Office meeting later Wednesday said he was very happy with the decision.
"What happened to General Flynn should never happen again in our country." pic.twitter.com/M5bzmfioJe
— The White House (@WhiteHouse) June 24, 2020
The president has been highly critical of the prosecution of Flynn, a retired Army lieutenant general who pleaded guilty in late 2017 to lying to the FBI about his conversations with Russiaâs ambassador to the United States in the weeks before Trumpâs inauguration.
âWe are delighted to see the D.C. Circuit apply the Rule of Law and appreciate the professionalism of the Department of Justice in producing the exculpatory evidence and moving to dismiss a case that should never have been brought,â Flynn lawyer Sidney Powell said in an email to CNBC.
Powell, who replaced Flynnâs previous attorneys, had sought to retract his plea since last year, claiming that prosecutors improperly withheld evidence from Flynn and his earlier defense team.
The Justice Department until last month had strongly fought that effort. It sought to have Flynn sentenced after more than a year of postponements related to his cooperation with then-special counsel Robert Muellerâs investigation of Russian interference in the 2016 presidential election. It also opposed Flynnâs subsequent attempts to withdraw his plea.
But in May, the Justice Department asked Sullivan to dismiss the case.
Then-interim U.S. attorney for the District of Columbia, Timothy Shea, argued in the dismissal motion that the FBIâs interview of Flynn was not justified by a counterintelligence investigation. Shea also wrote that Flynnâs lies about what he said to the Russian ambassador were not âmaterialâ to that probe.
Gleeson, in a court filing advising Sullivan to sentence Flynn for his admitted crime, accused the Justice Department of âgross abuse of prosecutorial powerâ in seeking to drop its case.
Gleeson, a former federal prosecutor, also wrote that the department âhas engaged in highly irregular conduct to benefit a political ally of the President.â
Other former prosecutors likewise condemned the Justice Departmentâs dismissal bid.
At the time of Wednesdayâs appeals court ruling, Sullivan was scheduled next month to have a hearing on the dismissal request.
In its ruling, the appeals panel said the dismissal request was not the kind of âunusual case where a more searching inquiry is justified,â such as the one Sullivan had set into motion by appointing Gleeson as a friend of the court.
Rao, in the decision, also said the executive branch has âprimacy over charging decisions.â
Because of that, âwe grant the petition for mandamus in part and order the district court to grant the governmentâs Rule 48(a) motion to dismiss the charges against Flynn,â the ruling said.
Rao wrote that it was appropriate to order Sullivan to dismiss the case after he slow-walked his decision âto prevent the judicial usurpation of executive power.â
Rao was joined in the majority ruling by Judge Karen LeCraft Henderson, who was appointed to her seat by President George H.W. Bush after Whitewater prosecutor Kenneth Starr left the appellate court.
In a sharp dissent to the ruling, Judge Robert Wilkins wrote, âThis is no mere about-face; it is more akin to turning around an aircraft carrier.â
âIt is a great irony that, in finding the District Court to have exceeded its jurisdiction, this Court so grievously oversteps its own,â wrote Wilkins, who was appointed by President Barack Obama. âłThis 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.â
Wilkins also objected to the decision because it did not give Sullivan time to hold a hearing on the merit of the Justice Departmentâs dismissal request.
At the same time as the ruling Flynnâs case was issued, a federal prosecutor was set to testify before Congress that Justice Department leaders overruled him and other prosecutors involved in the case against Trump friend Roger Stone to recommend a lesser criminal sentence than the one that trial prosecutors had called for.
âI have never seen political influence play a role in prosecutorial decision making, with one exception:Â United States v. Roger Stone,â the prosecutor, Aaron Zelinsky, said in testimony prepared for the House Judiciary Committee.
Zelinsky and the caseâs three other prosecutors withdrew from Stoneâs case in February after superiors asked them to revise their recommendations.
Zelinsky said the Justice Department pressured the prosecutors to âwater down and in some cases outright distortâ the nature of Stoneâs conduct. A longtime Republican operative, Stone is awaiting sentencing after being convicted at trial of lying to Congress and witness tampering.