Appeals Court Panel Orders End to Michael Flynn Case


Two appellate judges ordered a lower-court judge to immediately dismiss a charge against President Trump’s former national security adviser. A third judge accused them of overstepping their powers.

WASHINGTON — A divided federal appeals court panel ordered an immediate end on Wednesday to the case against Michael T. Flynn, President Trump’s former national security adviser — delivering a major victory to Mr. Flynn and to the Justice Department, which had sought to drop the case.

In the ruling, two of three judges on a panel for the Court of Appeals for the District of Columbia ordered the trial judge overseeing the matter, Judge Emmet G. Sullivan, to immediately dismiss the case without further review. The third accused his colleagues of “grievously” overstepping their powers, and the full appeals court has the option of reviewing the matter.

The order — a so-called writ of mandamus — was rare and came as a surprise, taking its place as yet another twist in the extraordinary legal and political drama surrounding the prosecution of Mr. Flynn, who twice pleaded guilty to lying to F.B.I. agents in the Russia investigation about his conversations in December 2016 with the Russian ambassador to the United States.

Mr. Flynn’s case became a political cause for Mr. Trump and his supporters, who have sought to discredit the broader inquiry into Russia’s interference in the 2016 election and links to the Trump campaign. Earlier this year, Mr. Flynn sought to withdraw his guilty plea, and Attorney General William P. Barr directed prosecutors last month to ask Judge Sullivan to dismiss the case.

But before ruling on that request, Judge Sullivan appointed a former judge to critique the government’s motion. Mr. Flynn’s defense lawyer, Sidney Powell, then asked the federal appeals court to order Judge Sullivan to shut down that review and terminate the matter.

Widely seen as a long shot by many legal experts, her strategy succeeded — at least for now.

The case is “about whether, after the government has explained why a prosecution is no longer in the public interest, the district judge may prolong the prosecution by appointing an amicus, encouraging public participation, and probing the government’s motives,” wrote Judge Neomi Rao, a former White House official whom Mr. Trump appointed to the appeals court last year.

The outcome raised the question of whether Judge Sullivan, who has a lawyer representing him in the appeals court, will ask the full appeals court to reverse the order — or whether the full court might use a rarely invoked rule that permits it to order a rehearing on its own, without any petition, if the judges deem the matter to involve “a question of exceptional importance.”

Judge Rao’s decision was joined by Judge Karen L. Henderson, a 1990 appointee of President George Bush. The fact that the two of them turned out to be on the panel had been seen as a good sign for Mr. Flynn because each of them have proved more willing than the majority of their colleagues to interpret the law in Mr. Trump’s favor in other politically charged cases, like disputes over congressional subpoenas for his financial records and whether Congress may see secret grand-jury evidence from the Russia investigation.

But the ruling was nevertheless a surprise because both of them — and Judge Henderson in particular — had asked many questions during oral arguments this month that seemed to signal skepticism about short-circuiting Judge Sullivan’s review before he decided on how to rule on the Justice Department’s motion to dismiss the case.

Kerri Kupec, a Justice Department spokeswoman, celebrated the unexpected result in a Twitter message, writing: “WIN in General Flynn’s case.” Asked for comment, Ms. Kupec added that the department was pleased with the panel’s ruling.

A third judge on the panel, Judge Robert L. Wilkins, a 2014 appointee of President Barack Obama, dissented. He said Judge Sullivan should be permitted to complete his review of the prosecutor’s actions and whether they are impermissible before deciding whether to grant the government’s motion to dismiss, citing the unusual circumstances of the Justice Department’s “abrupt reversal on the facts and the law” and the opacity of what happened.

In a dissenting opinion, he said his colleagues had made a series of mistakes that rendered a “dead letter” the portion of the rule of criminal procedure that said cases may only be dismissed with a judge’s approval, or “leave of the court” — at least in cases where the defense and prosecution agrees that a case should be dropped.

Instead, he argued, the law requires that Judge Sullivan be permitted to rule — and if Mr. Flynn and the Justice Department do not like what he decides, they can then file an appeal.

“The district court must be given a reasonable opportunity to consider and hold a hearing on the government’s request to ensure that it is not clearly contrary to the public interest,” he wrote. “I therefore dissent.”

Mr. Trump fired Mr. Flynn in early 2017 for lying to Vice President Pence and other colleagues about what he and the Russian ambassador discussed in December 2016. Mr. Flynn also struck a deal with prosecutors working for the special counsel, Robert S. Mueller III, to cooperate and plead guilty to one count of making a false statement when F.B.I. agents had questioned him about the conversations. The deal would resolve his liability for that crime as well as for failing to register as a paid foreign agent of Turkey in 2016 and then signing forms in 2017 lying about the nature of that work.

But after Mr. Flynn twice pleaded guilty, he switched last year to a new defense lawyer — Ms. Powell — who began accusing the F.B.I. and prosecutors of misconduct. After Judge Sullivan rejected her accusations as unfounded late last year, Mr. Flynn sought to withdraw his guilty plea. Mr. Barr then assigned an outside prosecutor to scour Mr. Flynn’s case file, turning over internal documents showing that the F.B.I. was aggressive in decisions related to questioning him.

Ms. Powell used those documents to renew her allegations of misconduct, even as the president indicated that he was considering pardoning Mr. Flynn. But in May, Mr. Barr intervened again, directing a prosecutor to seek to simply dismiss the case with prejudice — meaning it could not be refiled by the Justice Department under any future administration — on the theory that Mr. Flynn’s lies to the F.B.I. were not “material” to any legitimate investigation.

Mr. Barr’s move was widely seen as extraordinary and a break with the Justice Department’s approach in cases not involving a presidential favorite, fueling accusations of politicization. In particular, legal experts broadly disputed his notion that the false statements were not “material,” since they bore on the broader counterintelligence investigation into whether Trump campaign officials had coordinated with Russia in its 2016 election interference.

The outsider whom Judge Sullivan had appointed to critique the Justice Department motion — John Gleeson, a former federal judge — had argued that its arguments for dropping the case were baseless and a “pretext” for an illegitimate political intervention on behalf of a presidential favorite, and urged Judge Sullivan to instead sentence Mr. Flynn.

The Justice Department and Ms. Powell have rejected that critique, arguing that dismissal of the case was both warranted on the facts and that Judge Sullivan had no authority to question the executive branch’s decision not to press forward with a prosecution. Mr. Gleeson was due to file a response to those rebuttals on Wednesday.

The ruling could effectively end the case, if Judge Sullivan acquiesces. But even if he instead asks the full appeals court to vacate the order and rehear the matter — or the full court decides to intervene on its own — the ruling seemed likely at a minimum to disrupt his plan to hold a hearing on July 16 on whether to dismiss the charge.


News – Appeals Court Panel Orders End to Michael Flynn Case


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