by Jerry Dunleavy
An appeals court ordered the judge presiding over the case against retired Lt. Gen. Michael Flynn to grant the Justice Department's motion to dismiss the criminal charges against the former Trump national security adviser.
"ORDERED that Flynn’s petition for a writ of mandamus be granted in part; the District Court is directed to grant the government’s Rule 48(a) motion to dismiss; and the District Court’s order appointing an amicus is hereby vacated as moot, in accordance with the opinion of the court filed herein this date," the U.S. Court of Appeals for the District of Columbia ruled Wednesday.
DOJ spokeswoman Kerri Kupec reacted to the ruling with a tweet. "WIN in General Flynn’s case. DC Circuit has ruled 2-1, instructing Judge Sullivan to grant DOJ’s motion to dismiss the case," she said.
WIN in General Flynn’s case.— Kerri Kupec DOJ (@KerriKupecDOJ) June 24, 2020
DC Circuit has ruled 2-1, instructing Judge Sullivan to grant DOJ’s motion to dismiss the case. 🇺🇸🇺🇸🇺🇸🇺🇸
This is not necessarily the end of the Flynn legal fight. Sullivan could request a rehearing “en banc” before the full appeals court, and it is possible that one of the other judges on the appeals court could request such a hearing “sua sponte” even if Sullivan doesn’t formally request it himself.
The Justice Department told the Court of Appeals last month “that continued prosecution of this case would not serve the interests of justice” as it sought to drop the false statements charges against Flynn, but instead, Judge Emmet Sullivan, a Bill Clinton appointee who has been handling the Flynn case since December 2017, appointed retired New York federal Judge John Gleeson to serve as an amicus curiae to present arguments in opposition to the Justice Department’s motion and to explore whether Flynn should be charged with perjury or contempt.
Flynn’s legal team, led by Sidney Powell, and lawyers for the Justice Department argued separately before a three-judge appeals court panel earlier in June that the higher court should grant a petition for a writ of mandamus and direct Sullivan to grant the Justice Department’s motion to drop the charges against Flynn.
The two Republican appointees agreed that Sullivan should be ordered to dismiss the case, and the Democratic appointee dissented.
Judge Neomi Rao, who was appointed by President Trump in 2019, authored the appeals court opinion telling the lower court to dismiss the case and was joined by Judge Karen Henderson, appointed to the appeals court in 1990 by President George H.W. Bush. Judge Robert Wilkins, who made his way to the appeals court in 2010 after being appointed by President Barack Obama, issued a dissenting opinion.
“In its motion, the government explains that in light of newly discovered evidence of misconduct by the Federal Bureau of Investigation, the prosecution can no longer prove beyond a reasonable doubt that any false statements made by Flynn were material to a legitimate investigation,” Rao wrote, noting that Flynn’s team was seeking a three-part order directing the district court to grant the motion to dismiss, to vacate the amicus appointment, and to reassign the case to a different judge. Rao granted the first two requests but said that “we deny Flynn’s petition to the extent he seeks reassignment of the district judge” because “this case does not meet the ‘high bar’ for reassignment.”
“This is plainly not the rare case where further judicial inquiry is warranted,” Rao wrote. “To begin with, Flynn agrees with the government’s motion to dismiss, and there has been no allegation that the motion reflects prosecutorial harassment. Additionally, the government’s motion includes an extensive discussion of newly discovered evidence casting Flynn’s guilt into doubt… Insufficient evidence is a quintessential justification for dismissing charges.”
Documents declassified in April indicate that FBI special agent Peter Strzok abruptly stopped the FBI from closing its investigation into Flynn in early January 2017 at the insistence of the FBI’s “7th floor” leadership after the bureau had uncovered “no derogatory information” on the incoming national security adviser.
Former FBI Director James Comey admitted last year he took advantage of the chaos in the early days of Trump's administration when he sent Strzok and Pientka to talk to Flynn.
Notes from the FBI's head of counterintelligence, Bill Priestap, seem to show him casting doubt on the plan to interview Flynn, asking: “What is our goal? Truth/Admission or to get him to lie, so we can prosecute him or get him fired?”
Flynn, who was Trump's first national security adviser, pleaded guilty in December 2017 to lying to FBI investigators about his December 2016 conversations with a Russian envoy about a United Nations resolution on Israel and sanctions. But Flynn now claims he was set up by the FBI, and the Justice Department is seeking to drop the case. The appeals court ordered the lower court to make that happen.
Wilkins said the appeals court majority got it wrong.
“It is a great irony that, in finding the District Court to have exceeded its jurisdiction, this Court so grievously oversteps its own. 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 wrote. “Both this Court and the Supreme Court regularly permit the participation of amici in the criminal context, however, and there is no readily apparent reason why, in appropriate circumstances, a district court might not exercise its inherent power to do the same.”
Gleeson has argued the Justice Department engaged in “a gross abuse of prosecutorial power” in moving to dismiss the Flynn case. Flynn’s team countered that “the irony and sheer duplicity of Amicus’s accusations against the Justice Department now — which is finally exposing the truth — is stunning.”
Rao said Wednesday that the dissent by Wilkins “minimizes the import of the district court’s orders” because Sullivan “has appointed one private citizen to argue that another citizen should be deprived of his liberty regardless of whether the Executive Branch is willing to pursue the charges.” She said. “The dissent fails to justify the district court’s unprecedented intrusions on individual liberty and the Executive’s charging authority.”
“Each of our three coequal branches should be encouraged to self-correct when it errs. If evidence comes to light calling into question the integrity or purpose of an underlying criminal investigation, the Executive Branch must have the authority to decide that further prosecution is not in the interest of justice,” Rao concluded.