Santa Fe New Mexican

Appeals court refuses dismissal of Flynn case

Judge may move forward in scrutiny of Justice bid to end case

- 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 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.

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Michael Flynn

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