A VICTORY FOR FLYNN AND TRUMP

Federal appeals court orders judge to dismiss the DOJ's case against former national security adviser Michael Flynn

 

By Sonam Sheth and Darren Samuelsohn

 

Business Insider

June 24, 2020

 

A three-judge panel on the US Court of Appeals in Washington, DC, ordered the federal judge overseeing the case against Michael Flynn to dismiss the prosecution on Wednesday, marking another big twist for the most high-profile former Donald Trump official to face criminal charges from special counsel Robert Mueller's Russia probe.

In a 2-1 decision, the appeals court also overturned US District Judge Emmet Sullivan's decision to bring in a retired federal judge and veteran prosecutor to argue against the Justice Department's motion to dismiss Flynn's case. Sullivan had scheduled a July 16 hearing to weigh whether or not to toss out the case against President Donald Trump's former national security adviser.

The appeals court ruled that Sullivan does not have the authority to prolong Flynn's prosecution or examine the Justice Department's motivation for wanting to drop the case.

"This is not the unusual case where a more searching inquiry is justified," Judge Neomi Rao, a Trump-appointed judge, wrote in the majority opinion. Rao was joined by Judge Karen LeCraft Henderson, an appointee of President George H.W. Bush.

In a 19-page dissent, Judge Robert Wilkins questioned his colleagues' decision to preempt Sullivan's authority to take a closer look at the merits of DOJ's decision to drop the Flynn case. "It is a great irony that, in finding the District Court to have exceeded its own jurisdiction, this Court so grievously oversteps its own," the appointee of President Barack Obama wrote.

The appeals court's decision is nonetheless a major victory for the former national security adviser, whose legal team has argued for months that the government unfairly targeted him for political reasons.

Trump, who has long alleged that the Russia investigation was a "deep state" plot masterminded by the Obama administration to undermine his presidency, rejoiced over the decision Wednesday.

"Great!" he tweeted. "Appeals Court Upholds Justice Departments Request To Drop Criminal Case Against General Michael Flynn!"

Justice Department spokeswoman Kerri Kupec also celebrated the decision. "WIN in General Flynn's case," she wrote on Twitter.

The full DC Circuit Court of Appeals could still hear arguments in the Flynn case in what's known as an en banc hearing, and the full panel has more judgesappointed by Democratic presidents than those appointed by Republicans.

Flynn pleaded guilty in December 2017 to lying to the FBI about his conversations with then-Russian Ambassador Sergey Kislyak regarding US sanctions against Russia.

Flynn initially cooperated with Mueller's prosecutors but later shifted course and hired Sidney Powell, a defense attorney who took a more combative stance, urging the court to dismiss the Justice Department's case against Flynn and accusing the department of prosecutorial misconduct.

Last month, the DOJ abruptly moved to drop its case against Flynn after Attorney General William Barr tapped an outside prosecutor to reexamine the case.

Trump and his allies celebrated the decision, saying it confirmed their claims that the FBI acted out of political bias when it investigated the Trump campaign for conspiring with the Russian government in 2016.

Department veterans and national security officials, meanwhile, excoriated the decision as being part of Barr's ongoing effort to use the department as a shield for Trump and a sword against his perceived enemies.

They pointed, specifically, to the fact that Flynn had already pleaded guilty and acknowledged his wrongdoing several times, weakening the department's claim that it could not legally bring a case against the former national security adviser.

Brandon Van Grack, one of the prosecutors from the Mueller team who worked on the Flynn case, also withdrew as counsel for the government shortly before the DOJ filed its motion to drop the case.

Van Grack's sudden withdrawal was the biggest red flag to DOJ veterans, who told Business Insider it was reminiscent of when the prosecutors working on the US's case against Roger Stone, another Trump ally, withdrew en masse after senior department leadership publicly reversed their sentencing recommendation in the case.

The controversy kicked up another when Mary McCord, the former acting assistant attorney general for national security who was directly involved in the early stages of the Flynn case, wrote that the DOJ twisted her testimony to justify dropping the case.

Jonathan Kravis, one of the prosecutors from the Stone case who left the department altogether after withdrawing, also wrote in a Washington Post op-ed that the DOJ's move to dismiss Flynn's case was a "disastrous mistake."

Kravis accused the DOJ of putting "political patronage ahead of its commitment to the rule of law" and moving to dismiss the case even though Flynn pleaded guilty and the court ruled that the plea was valid. 

EDITOR'S NOTE: If the full court hears this case, they will likely overturn the panel's ruling since most of the judges were appointed by democratic presidents.