Court orders judge to dismiss Flynn case
WASHINGTON — A divided federal appeals court panel ordered an immediate end Wednesday to the case against Michael Flynn, President Donald Trump’s former national security adviser — delivering a major victory to 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 U.S. Court of Appeals for the District of Columbia Circuit ordered the trial judge overseeing the matter, Judge Emmet Sullivan, to immediately dismiss the case without further review. The third accused his colleagues of “grievously” overstepping their powers.
But the full appeals court has the option of reviewing the matter, and Sullivan didn’t immediately dismiss the case in response to the ruling. Instead, he suspended deadlines for further briefs and a July 16 hearing in his review, suggesting he was studying his options or waiting to see what the broader group of judges might do.
The order from the panel — a socalled 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 Flynn, who twice pleaded guilty to lying to FBI agents in the Russia investigation about his conversations in December 2016 with the Russian ambassador to the United States.
Flynn’s case became a political cause for Trump and his supporters, who have tried to discredit the broader inquiry into Russia’s interference in the 2016 election and links to the Trump campaign.
Earlier this year, Flynn sought to withdraw his guilty plea, and Attorney General William Barr directed prosecutors last month to ask Sullivan to dismiss the case.
But before ruling on that request, Sullivan appointed a former judge to critique the government’s motion. Flynn’s defense lawyer, Sidney Powell, then asked the federal appeals court to order 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 Trump appointed to the appeals court last year.
She added: “On that, both the Constitution and cases are clear: He may not.”
Sullivan, who has a lawyer representing him in the appeals court, could ask the full court to reverse the order. The full court also could invoke a rarely used 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.”
The ruling turned on a technical question — whether, as a legal matter, Sullivan has the authority to scrutinize Barr’s motivation or had to acquiesce to the Justice Department request that he rubber-stamp dropping the case without reviewing the motion’s legitimacy.
At the White House, Trump said he was “very happy about General Flynn,” adding: “He’s been exonerated, and I want to congratulate him.”
But Rep. Steve Cohen, D-Tenn., called on the full appeals court to review the panel’s decision, arguing at the House hearing that judges should be able to “look into the executive branch when what they do is not in the interest of justice.”
He also portrayed Rao in political terms, noting that until she became a judge last year, she had led a White House agency that oversees regulations.
Rao’s decision not to permit Sullivan to scrutinize the Justice Department request to withdraw the Flynn charge was joined by Judge Karen 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 Flynn because each has proved more willing than the majority of their colleagues to interpret the law in Trump’s favor in other politically charged cases, such as disputes over congressional subpoenas for his financial records and whether Congress may see secret grand-jury evidence from the Russia investigation.
A third judge on the panel, Robert Wilkins, a 2014 appointee of President Barack Obama, dissented.
He said Sullivan should be permitted to complete his review of whether the prosecutor’s actions were impermissible before deciding whether to grant the 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.