Bloomberg Law
Free Newsletter Sign Up
Bloomberg Law
Free Newsletter Sign Up

Flynn Judge Gets Go-Ahead to Probe U.S. Dismissal of Case (4)

Aug. 31, 2020, 6:44 PM

President Donald Trump’s former national security advisor, Michael Flynn, can’t force a trial-court judge to grant the U.S. Justice Department’s surprise request to dismiss the criminal case against him, a federal appeals court said.

The decision Monday by the U.S. Court of Appeals in Washington followed a rehearing of an earlier ruling in favor of Flynn, who pleaded guilty to lying to federal agents in the early days of the Russia probe.

Michael Flynn arrives at federal court in Washington, D.C., in 2018.
Photographer: Andrew Harrer/Bloomberg

The decision is a victory for U.S. District Judge Emmet Sullivan, who is presiding over Flynn’s case and accepted his guilty plea for lying to federal agents. It also raises the prospect of politically embarrassing hearings as the president runs for re-election. Sullivan had argued that he should be allowed to probe whether the Justice Department was dropping the case as a favor to a Trump ally.

Trump has repeatedly criticized the case against Flynn as well as the underlying investigation into Russia’s interference in the 2016 election to help him win. The case has become a cause celebre among conservative commentators, who claim Flynn was unfairly targeted by Obama administration holdovers.

Flynn’s attorney, Sidney Powell, didn’t immediately respond to a message seeking comment on the decision. Sullivan’s lawyer, Beth Wilkinson, declined to comment. Justice Department spokeswoman Kerri Kupec also declined to comment

The appeals court said the order Flynn sought directing Sullivan to act is rarely used and only in circumstances where a petitioner has no other recourse. In Flynn’s case, Sullivan hasn’t yet held a hearing on the government’s motion to dismiss the case.

Flynn “has not cited any case in which our court, or any court, issued the writ to compel a district court to decide an undecided motion in a particular way -- i.e., when the district court might yet decide the motion in that way on its own,” the majority said.

‘Judicial Usurpation’

The appeals court reconsidered the case in a rare “en banc” hearing with a larger panel of judges after a 2-1 decision in June in favor of Flynn.

In a dissenting opinion Monday, Judge Neomi Rao, a Trump appointee, said Sullivan’s decision to scrutinize the Justice Department’s dismissal of the case is a “judicial usurpation of the executive power.”

“The majority gestures at the potential harms of such a judicial intrusion into the Executive Branch, but takes a wait-and-see approach, hoping and hinting that the district judge will not take the actions he clearly states he will take,” Rao wrote.

The majority also denied Flynn’s request to assign a different judge to the case on the grounds that Sullivan had allegedly shown bias against him. In a dissenting opinion, Judge Karen Henderson, an appointee of President George H. W. Bush, said Sullivan’s conduct in the case “patently draws his impartiality into question.”

Sullivan’s request for the rehearing “removes any doubt that the appearance of impartiality required of all federal judges has been compromised beyond repair,” Henderson wrote.

Read More: Flynn Dismissal Slammed as Corrupt DOJ Bid to Aid Trump Ally

Attorney General William Barr’s Justice Department said in May it was dropping the case because it determined Flynn’s false statements weren’t “material” to the agents’ investigation into Russian interference in the election. It also said the FBI agents Flynn lied to essentially set him up to fail -- claims repeatedly echoed by Trump. Long after pleading guilty, Flynn sought to withdraw his plea and the Justice Department and Trump backed him.

Flynn pleaded guilty in the early days of the Russia investigation. He sought to withdraw his plea and dismiss the case before the Justice Department said it was walking away from the prosecution.

John Gleeson, the former federal judge and mob prosecutor appointed by Sullivan to argue against dismissal, said the government’s motion was improper and should be denied.

(Updates with the Justice Department declining to comment in the fifth paragraph)

--With assistance from Chris Strohm.

To contact the reporter on this story:
Erik Larson in New York at

To contact the editors responsible for this story:
David Glovin at

Anthony Lin, Steve Stroth

© 2020 Bloomberg L.P. All rights reserved. Used with permission.