Appeals court refuses dismissal of Flynn case
Judge may move forward in scrutiny of Justice bid to end case
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 ruling represents the latest development in a criminal case that has taken unusual twists and turns over the last year and prompted a separation of powers tussle involving a veteran federal judge and the
Trump administration.
In a separate ruling Monday, a three-judge panel of the same appeals court again threw out a lawsuit by House Democrats to compel former White House counsel Don McGahn to appear before a congressional committee.
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 a 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.