Michael Flynn, former U.S. national security adviser, exits federal court in Washington, D.C., on Monday, June 24, 2019.
Andrew Harrer | Bloomberg | Getty Images
A federal appeals court ordered a lower-court judge Wednesday to dismiss the criminal case against Michael Flynn, who briefly served as President Donald Trump’s first national security advisor before being investigated and prosecuted for lying to FBI agents.
The 2-1 ruling by the three-judge appeals panel stressed the power of the Department of Justice, which has sought to drop its prosecution of Flynn, to make criminal charging decisions given its status as part of the executive branch of government.
The ruling came in response to a request for a so-called writ of mandamus, or judicial directive from Flynn’s lawyers.
Those defense attorneys asked the U.S. Circuit Court of Appeals for the District of Columbia Circuit after Washington federal court Judge Emmet Sullivan did not promptly grant the Justice Department’s highly unusual motion to dismiss the case.
Instead, Sullivan had appointed a lawyer, the former federal judge John Gleeson, to make arguments to him about why the case should not be tossed out. Sullivan also said he would consider arguments either for or against the dismissal request from third parties not connected to the case
Appeals Court Judge Neomi Rao in the decision for the majority Wednesday wrote that the case is about whether a trial court judge can prolong a criminal case and appoint a so-called friend of the court such as Gleeson as a legal advisor after prosecutors have “explained why a prosecution is no longer in the public interest.”
“On that, both the Constitution and (prior legal) cases are clear: he may not,” wrote Rao, who was appointed by Trump.
Like the Justice Department’s dismissal request, Sullivan’s lack of immediate agreement with it, and Flynn’s request that an appeals court force the judge to comply were both extremely unusual.
Trump praised Wednesday’s appeals court ruling in a Twitter post, calling it “Great!”
The president has been highly critical of the prosecution of the retired Army lieutenant general Flynn, who pleaded guilty in late 2017 to lying to the FBI about his conversations with Russia’s ambassador to the United States in the weeks before Trump’s inauguration early that year.
Flynn’ lawyer Sidney Powell, in an email to CNBC, wrote, “We are delighted to see the D.C. Circuit apply the Rule of Law and appreciate the professionalism of the Department of Justice in producing the exculpatory evidence and moving to dismiss a case that should never have been brought.
Flynn and Powell, who replaced his prior attorneys, since last year had sought to retract his plea, claiming that prosecutors improperly withheld evidence from Flynn and his earlier defense team.
The Justice Department until last month had strongly fought that effort, and sought to have Flynn sentenced after more than a year of postponements related to his cooperation with then-special counsel Robert Mueller’s investigation of Russian interference in the 2016 presidential election, and to Flynn’s subsequent attempts to withdraw his plea.
But in May, the Justice Departmen asked Sullivan to dismiss the case.
The then-interim U.S. attorney for the District of Columbia, Timothy Shea, argued in the dismissal motion that the FBI’s interview of Flynn was not justified by a counterintelligence investigation. Shea also wrote that Flynn’s lies about what he said to the Russian ambassador were not “material” to that probe.
Gleeson, in a court filing advising Sullivan to sentence Flynn for his admitted crime, accused the Justice Department of “gross abuse of prosecutorial power” in seeking to drop its case.
Gleeson, who himself is a former federal prosecutor, also wrote that the department “has engaged in highly irregular conduct to benefit a political ally of the President.”
Other former prosecutors likewise condemned the Justice Department’s dismissal bid.
At the time of Wednesday’s appeals court ruling, Sullivan was scheduled next month to have a hearing on the dismissal request.
In its ruling, the appeals panel said that the dismissal request was not the kind of “unusual case where a more searching inquiry is justified,” such as the one Sullivan had set into motion by appointing Gleeson as a friend of the court.
Rao, in the decision, also noted that the executive branch of government has “primacy over charging decisions.”
Because of that, “we grant the petition for mandamus in part and order the district court to grant the government’s Rule 48(a) motion to dismiss the charges against Flynn,” the ruling said.
Rao wrote that it was appropriate to order Sullivan to dismiss the case after he slow-walked his decision “to prevent the judicial usurpation of executive power.”
Rao was joined in the majority ruling by Karen LeCraft Henderson, who was appointed to her seat by President George H.W. Bush after Whitewater prosecutor Kenneth Starr left the appellate court.
In a sharp dissent to the ruling, Judge Robert Wilkins wrote, “This is no mere about-face; it is more akin to turning around an aircraft carrier.”
“It is a great irony that, in finding the District Court to have exceeded its jurisdiction, this Court so grievously oversteps its own,” wrote Wilkins, who was appointed by President Barack Obama.
He wrote that, “This appears to be the first time that we have issued a writ of mandamus to compel a district court to rule in a particular manner on a motion without first giving the lower court a reasonable opportunity to issue its own ruling.”
Wilkins also objected to the decision because it did not give Sullivan time to hold a court hearing on the merit of the Justice Department’s dismissal request.