Court keeps Flynn’s case alive
It will let judge examine government’s request for dismissal
WASHINGTON — A federal appeals court in Washington declined Monday to order the dismissal of the Michael Flynn prosecution, permitting a judge to scrutinize the Justice Department’s request to dismiss its case against President Donald Trump’s former national security adviser.
The decision keeps the case at least temporarily alive and rebuffs efforts by both Flynn’s lawyers and the Justice Department to force the prosecution to be dropped without any further inquiry from the judge, who has for months declined to dismiss it.
The Flynn conflict arose in May when the Justice Department moved to dismiss the prosecution despite Flynn’s own guilty plea to lying to the FBI about his contacts with the Russian ambassador during the presidential transition period.
But U.S. District Judge Emmet Sullivan, who had upbraided Flynn for his behavior at a 2018 court appearance, signaled his skepticism at the government’s unusual motion.
He refused to dismiss the case and instead scheduled a hearing and appointed a retired federal judge to argue against the Justice Department’s position. That former judge, John Gleeson, challenged the motives behind the department’s dismissal request and called it a “gross abuse” of prosecutorial power.
His lawyers then sought to bypass Sullivan and obtain an order from the appeals court that would have required the immediate dismissal of the case. They argued that the judge had overstepped his bounds by scrutinizing a decision that both sides, the defense and the Justice Department, were in agreement about and that the case was effectively moot once prosecutors decided to abandon it.
At issue before the appeals court was whether Sullivan could be forced to grant the Justice Department’s dismissal request without even holding a hearing to scrutinize the basis for the motion.
“We have no trouble answering that question in the negative,” the court wrote in an unsigned opinion for the eight judges in the majority.
The judges also rejected defense efforts to have Sullivan removed from the case.
In a concurring opinion, U.S. District Judge Thomas Griffith wrote that the court’s opinion did not concern the merits of the Justice Department’s prosecution of Flynn or even its decision to abandon the case.