Las Vegas Review-Journal

Court keeps Flynn’s case alive

It will let judge examine government’s request for dismissal

- By Eric Tucker

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.

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Michael Flynn

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