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Appeals Case Orders Judge to Dismiss Flynn's Criminal Case

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Appeals Case Orders Judge to Dismiss Flynn's Criminal Case

2020-06-25 16:55:34

By Laura Tucker, Staff writer; Image: Michael Flynn (Image source: Public domain)

Donald Trump and Attorney General William Barr may want to rethink the Michael Flynn case. While they're making moves to protect the former national security adviser from doing any jail time and to make it all go away, all it's doing is keeping the Russia investigation at the forefront of everyone's minds, more than a year after the final report was issued.

The Justice Department made a move to dismiss the criminal charges against Flynn to make it go away, but it's not going away with new headlines about the case every few weeks. The latest is that an appeals court ruled the judge in the case must immediately dismiss the case instead of holding a hearing to examine the case further.

An appeals court announced its 2-to-1 decision that it's not within Judge Emmet Sullivan's power to prolong the prosecution or examine the DOJ's motives when it moved to dismiss Flynn's case after he twice pleaded guilty to lying to the FBI. This was in regard to his contact with the Russian ambassador discussing sanctions former President Barack Obama slapped on Russia.

Sullivan delayed sentencing at one point, telling Flynn he was inclined to give him jail time for selling out his country. Flynn later switched his legal team, then requested to withdraw his guilty plea. Barr was investigating whether he should have been questioned by the FBI anyway, as the probe's motives are being investigated. The DOJ then moved to dismiss the case.

"This is not the unusual case where a more searching inquiry is justified," wrote Judge Neomi Rao, a judge Trump recently nominated. The appeals court's decision could be reviewed by the full Court of Appeals for the D.C. Circuit.

The three-member appeals court decided Sullivan overstepped his role and committed a "clear legal error" by not immediately closing the case and appointing a former judge to argue against the position made by the DOJ.

After the DOJ announced it was dropping the charges against Flynn, Sullivan refused to sign off on it and appointed former federal judge and mob prosecutor John Gleeson to step in. He argued the DOJ's move to dismiss the charges was "highly irregular conduct to benefit a political ally of the president."

Rao criticized his "demonstrated intent to scrutinize the reasoning and motives of the Department of Justice" and wrote they "constitute irreparable harms that cannot be remedied on appeal." Judge Karen LeCraft Henderson, a George H.W. Bush nominee, joined her in the opinion.

Trump tweeted after the opinion was announced, "Great! Appeals Court Upholds Justice Departments Request To Drop Criminal Case Against General Michael Flynn!" After, he told reporters, "I'm very happy about General Flynn. He was treated horribly." Trump fired Flynn within days of him being sworn in as national security adviser.

Flynn himself called in to Rush Limbaugh's radio show and said the appeals court's decision is a great boost of confidence for the American people and our justice system." This is after he pleaded guilty twice.

Judge Robert L. Wilkins, an Obama nominee, offered the dissenting opinion that the majority had "grievously" overstepped its authority by taking the "unprecedented" move to intervene before Sullivan had an opportunity to rule on the case.

Sullivan "must be given a reasonable opportunity to consider and hold a hearing on the Government's request to ensure that it is not clearly contrary to the public interest," he wrote.

For now, Sullivan cannot hold a hearing that he had set for July 16 to consider the DOJ's request to dismiss the case. He could ask for a rehearing, or the full court could decide to revisit the decision.

Federal criminal rules require prosecutors to obtain permission from the presiding judge to drop charges against a defendant, but there is disagreement whether those limits apply to the DOJ.

"Courts have said he's not a 'mere rubber stamp,' " said Henderson during oral arguments of Sullivan's independent role. "There's no authority I know of that says he can't hold a hearing."

Wilkins brought up past cases where the Supreme Court upheld the power of judges "to perform an independent evaluation" of a government action. Wilkins said in his dissent that the majority had eviscerated the court's role by not allowing a review.

"Today the majority declares that nevertheless — in spite of the Government's abrupt reversal on the facts and the law, and although the Government declares itself entitled not to be forthcoming with the District Court — these circumstances merit no further examination to determine whether there may be additional reasons for the prosecutor's actions, and if so, if any such reasons are impermissible."

Flynn's attorneys accused Sullivan of bias and asked the appeals court to reassign the case to another judge, yet this request was denied.

The same day this ruling was announced, a former prosecutor with special counsel Robert Mueller's Russia investigation team testified that he and other prosecutors were pressured by Barr and other top-level deputies to give another defendant, former Trump campaign adviser and friend of the president, Roger Stone, a "break" by requesting a lighter prison sentence.

The court majority didn't agree with Sullivan's appointment of Gleeson, partly because he is a public advocate for adversarial process and his initial filing with Sullivan.

"These actions foretell not only that the scrutiny will continue but that it may intensify," wrote Rao. "Among other things, the government may be required to justify its charging decisions, not only in this case but also in the past or pending cases cited in Gleeson's brief."

She also dictated that when new evidence surfaces, "the Executive Branch must have the authority to decide that further prosecution is not in the interest of justice." 

Barr and Trump were successful at keeping Flynn from prison at this point. However, they're keeping his case and the investigation at the top of everyone's minds, something Trump and his low public opinion can't handle this close to November. If the full appeals court decides against them, it only exposes Barr further fur what he is currently being accused of.

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