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Michael Flynn Wins Ruling Ordering Judge to Dismiss Case (3)

June 24, 2020, 4:27 PM

A federal appeals court ordered a judge to immediately dismiss the criminal case against President Donald Trump’s former national security adviser, Michael Flynn, who twice pleaded guilty to lying to the FBI.

A divided three-judge panel on Wednesday said U.S. District Judge Emmet Sullivan in Washington did not have the authority to decide on his own whether to grant the government’s surprise motion to dismiss the case or examine whether it was part of a corrupt effort to aid one of Trump’s political allies.

“This is plainly not the rare case where further judicial inquiry is warranted,” the court said. “The government’s motion includes an extensive discussion of newly discovered evidence casting Flynn’s guilt into doubt.”

The 2-1 ruling is a win for Trump, who has repeatedly slammed the case against Flynn as part of a broader conspiracy by Democrats to undermine him and his administration. The Justice Department under Attorney General William Barr reversed course on its prosecution of Flynn last month, requesting the court drop the case because Flynn’s false statements to two federal agents weren’t “material” to their investigation and they set him up to lie as part of a biased agenda.

The panel divided along party lines, with Trump appointee Neomi Rao joining with George H.W. Bush appointee Karen Henderson in the majority and Obama appointee Robert Wilkins dissenting. The split could tee up an appeal to the full circuit court in Washington or even the U.S. Supreme Court.

The president quickly hailed the ruling on Twitter.

Beth Wilkinson, the lawyer hired by Sullivan to represent him in the appeals court, declined to comment on the decision. Flynn’s lawyer, Sidney Powell, didn’t immediately respond to an email seeking comment.

An appeal by Sullivan to the full circuit might find a more receptive audience. Judges appointed by Democratic presidents still form a majority of the court’s complement, though the president and Republican Senate Majority Leader Mitch McConnell have worked to change that with conservative appointments like Rao and Justin Walker, who was confirmed by a party-line vote last week.

The full circuit is currently reconsidering a 2-1 appeals court ruling from February which shot down House Democrats’ lawsuit to enforce a subpoena for the testimony of former Trump White House counsel Donald McGahn.

The majority in Wednesday’s ruling said an inquiry by Sullivan into the government’s decision on Flynn would harm the executive branch’s exclusive prosecutorial power under Article II of the Constitution. “The contemplated proceedings would likely require the Executive to reveal the internal deliberative process behind its exercise of prosecutorial discretion, interfering with the Article II charging authority,” Rao wrote for the majority.

Judges Skeptical

Despite the panel’s Republican tilt, the decision came as something of a surprise after a June 12 hearing at which all three judges appeared skeptical of intervening in the case before there was a ruling on the government’s motion, with Henderson noting that Sullivan might yet dismiss the case. The majority said Wednesday that Sullivan, a Bill Clinton appointee, had made “unprecedented intrusions” on the Justice Department’s authority.

In his dissent, Wilkins said the two other judges had exceeded their own authority while accusing Sullivan of overstepping his. Noting Flynn and the government could still have appealed any ruling by Sullivan, Wilkins called the appeals court’s intervention at this stage a “drastic and extraordinary remedy” that he believed had never happened before.

Former federal prosecutor Jessica Roth, a professor at Cardozo Law School who isn’t involved in the case, said the decision was “highly unusual.”

“The Court of Appeals intervened before the district court reached a decision on whether to dismiss the charges against Flynn,” Roth said. “Judge Sullivan might well have decided to grant the motion to dismiss, but now the Court of Appeals has preemptively directed him to do that.”

Flynn and the Justice Department had gone to the appeals court after Sullivan declined to immediately grant the government’s May 7 motion to dismiss the case. Noting that the request was not made by the prosecutors who worked on the three-year-old case, Sullivan said he wanted to hold a July 16 hearing on the “unprecedented” move. He also appointed a former federal judge and mob prosecutor, John Gleeson, as a so-called “friend of the court” to argue against the Justice Department’s dismissal motion.

Blistering Brief

Gleeson issued a blistering June 10 brief calling the request a politically motivated attempt to help an ally of the president that should be denied.

Lawyers for Flynn and the government argued at the June 12 hearing that Sullivan was barred by the constitutional separation of powers from doing anything other than immediately granting the Justice Department’s motion to dismiss. Sullivan’s lawyer argued the unusual circumstances in which the motion was brought warranted digging deeper into the government’s reasoning.

Gleeson’s brief seemed to weigh heavily on the majority, which slammed his assertion that the motion to dismiss had corrupt motivations. “He relied on news stories, tweets, and other facts outside the record to contrast the government’s grounds for dismissal here with its rationales for prosecution in other cases,” Rao said of Gleeson.

The majority also held that Sullivan had gone too far by inviting members of the general public to file briefs in the case, suggesting “anything but a circumscribed review.”

The case, which became part of Robert Mueller’s investigation into foreign interference in the 2016 U.S. election, began when Flynn lied to two FBI agents in January 2017 about what he said in two phone calls with the Russian ambassador. He also gave a false account of the calls to Vice President Mike Pence, which led to his firing by Trump soon.

Prosecutors in the case originally said Flynn’s lies could set him up to be blackmailed by the Russians. He pleaded guilty twice but sought to withdraw his plea in January after his case became a rallying cry for conservative commentators and the president who claim Flynn was improperly targeted by Obama administration holdovers trying to sabotage the the Trump White House.

The move to dismiss the case against Flynn, as well as others steps taken by Barr, have raised questions about the political independence of the Justice Department.

Jill Wine-Banks, a former Watergate prosecutor who joined a brief urging the appeals court to allow Sullivan to investigate the government’s motion, said Wednesday’s ruling would damage the judiciary and hurt the morale of federal prosecutors.

“They’re gutting the power of the court,” she said. “It’s my firm belief that the law and the facts support the righteousness of Sullivan holding a hearing and investigating whether there’s a valid reason for dismissal.”

(Updates with detail from the litigation)

--With assistance from David Yaffe-Bellany.

To contact the reporter on this story:
Erik Larson in New York at elarson4@bloomberg.net

To contact the editors responsible for this story:
David Glovin at dglovin@bloomberg.net

Anthony Lin, Peter Jeffrey

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

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