Appeals Court Orders Judge to Dismiss Criminal Case Against Michael Flynn

By Ann E. Marimow, The Washington Post

24 June 20

.S. District Judge Emmet G. Sullivan cannot scrutinize the Justice Department’s decision to drop its long-running prosecution of President Trump’s former national security adviser Michael Flynn and must dismiss the case, a federal appeals court ruled Wednesday.

In a 2-1 decision, the court said it is not within the judge’s power to prolong the prosecution or examine the government’s motives for its reversal in the politically charged case. Flynn twice pleaded guilty to lying to federal agents about his pre-inauguration contacts with Russia’s ambassador before the Justice Department moved in May to dismiss the charges.

“This is not the unusual case where a more searching inquiry is justified,” wrote Judge Neomi Rao, a recent nominee of the president.

Sullivan overstepped his role and committed a “clear legal error,” the court said, by refusing to immediately close the case at the government’s request and instead appointing a former judge to argue against the Justice Department’s position.

The judge’s “demonstrated intent to scrutinize the reasoning and motives of the Department of Justice constitute irreparable harms that cannot be remedied on appeal,” Rao wrote in the 19-page opinion that was joined by Judge Karen LeCraft Henderson, a nominee of President George H.W. Bush.

Read the opinion here.

Soon after the opinion was published, Trump tweeted: “Great! Appeals Court Upholds Justice Departments Request To Drop Criminal Case Against General Michael Flynn!”

In his dissent, the third judge on the panel, Robert Wilkins, said the majority “grievously” overstepped its own authority by forcing Sullivan to drop the case before the judge had an opportunity to rule.

The majority “set aside this Court’s well-established and well-founded concern for the maintenance of the ordinary course in order to proceed in an unprecedented manner,” wrote Wilkins, a nominee of President Barack Obama.

The ruling from a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit, which can be reviewed by the full court, means that Sullivan cannot hold a hearing set for July 16 to formally hear the government’s request to dismiss Flynn’s case.

Sullivan refused to immediately sign off on the Justice Department’s plans and instead appointed a former federal judge, John Gleeson, to argue against the government’s position and help him decide how to proceed. Gleeson, a former New York judge and mob prosecutor, characterized the government’s move as a “gross abuse of prosecutorial power” and “highly irregular conduct to benefit a political ally of the President.”

Nothing about the case testing the powers of the judiciary to check the executive branch has followed a typical path. Flynn’s lawyers, joined by the Justice Department, took the rare step of asking the appeals court to intervene midstream and order Sullivan to close the case.

Sullivan then hired a high-profile trial attorney to represent him before the appeals court. At oral argument in June, the judge’s lawyer, Beth Wilkinson, told the court it was premature to cut off Sullivan’s review before he had rendered a decision.

At oral argument, the three-judge panel seemed to agree and expressed concern that the judge would be a “rubber stamp” for the government’s change of heart.

“Courts have said he’s not a ‘mere rubber stamp,’ ” Henderson said of Sullivan’s independent judicial authority. “There’s nothing wrong with him holding a hearing; there’s no authority I know of that says he can’t hold a hearing.”

Wilkins cited past cases in which the Supreme Court upheld the power of judges “to perform an independent evaluation” of the government’s action.

Lawyers for the retired three-star general accused Sullivan of bias. They said the judge was overstepping his authority and acting as a prosecutor in place of the Justice Department.

In a sign of the high-level interest in the matter that could reach the Supreme Court, the Justice Department was represented by Deputy Solicitor General Jeffrey B. Wall. He referred to Gleeson’s report as a “polemic” and urged the court not to get pulled into a “political spectacle.”

Flynn was the highest-ranking Trump adviser charged in special counsel Robert S. Mueller III’s investigation into Russian interference in the 2016 presidential election. Before its reversal in May, the government had recommended a prison term of up to six months for Flynn.

Instead of moving to sentencing, Attorney General William P. Barr ordered a review of Flynn’s case. The review found that the FBI had no valid basis to question Flynn and, therefore, that any lies he told were irrelevant to any crime.

In reviewing the government's actions, Sullivan also asked Gleeson to consider whether Flynn may have committed perjury while pleading guilty to a crime that he and the Justice Department now say is no longer a crime. Gleeson advised Sullivan in his initial report not to impose contempt of court penalties on Flynn but to continue to the sentencing phase of the case.