A U.S. appeals court on Wednesday directed a federal judge to drop a criminal case against President Donald Trump’s former national security adviser Michael Flynn for lying to the FBI, handing a victory to the Justice Department in another twist to the politically charged case.
In a 2-1 decision, a panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled in favour of Flynn and the Trump administration in preventing U.S. District Judge Emmet Sullivan from exercising his discretion on whether to grant the department’s motion to clear Flynn, who twice pleaded guilty.
The ruling prevents Sullivan from hearing arguments at a July 16 hearing from retired judge John Gleeson, whom he appointed as a “friend of the court” to argue against dropping the case.
“In this case, the district court’s actions will result in specific harms to the exercise of the executive branch’s exclusive prosecutorial power,” wrote Judge Neomi Rao, who was appointed by Trump.
“The contemplated proceedings would likely require the Executive to reveal the internal deliberative process behind its exercise of prosecutorial discretion,” she added.
A source familiar with the matter told Reuters that Wednesday’s ruling will likely be appealed to a larger panel of the federal appeals court.
Flynn, a retired Army lieutenant general, was one of several former Trump aides charged under former special counsel Robert Mueller’s investigation that detailed Moscow’s interference in the 2016 U.S. presidential election.
Flynn agreed to plead guilty to lying to the FBI about his conversations with Russia’s then-ambassador, Sergey Kislyak and then affirmed that was his plea in a court hearing. But he then switched lawyers to pursue a new scorched-earth tactic that accused the FBI of entrapping him, and asked the judge to dismiss the charge.
Judge took steps after ‘unprecedented’ request
Trump, who has signalled a possible pardon for Flynn, has publicly assailed the case and lamented that his former aide has been “tormented.”
Judge Robert Wilkins, an Obama administration appointee, dissented.
He said the Justice Department’s flip-flop on the case raised questions that merited further scrutiny by the District Court.
“In 2017, the then-Acting Attorney General told the Vice-President that Flynn’s false statements ‘posed a potential compromise situation for Flynn’ with the Russians,” Wilkins wrote. “Now, in a complete reversal, the government says none of this is true.”
“This is no mere about-face; it is more akin to turning around an aircraft carrier.”
After the Justice Department took the highly unusual step of seeking to abandon the case against Flynn, Sullivan appointed Gleeson to argue against the Justice Department’s request.
He also asked Gleeson to weigh in on whether Sullivan should hold Flynn in contempt for lying when pleading guilty.
Sullivan has said he cannot serve as a “rubber stamp” and must carefully review the facts in this “unprecedented” request.
In the majority opinion on Wednesday, the appeals court called Sullivan’s appointment of Gleeson “troubling,” and said it was granting Flynn’s petition to get the case dismissed to “prevent the judicial usurpation of executive power.”
Gleeson had urged Sullivan to proceed with sentencing Flynn and accused the department of “gross abuse of prosecutorial power” in to “provide special treatment to a favoured friend and political ally of the President of the United States.”
Beth Wilkinson, a veteran Washington trial lawyer who argued the case on Judge Sullivan’s behalf before the appeals court, declined to comment.
A Justice Department spokeswoman said the department was “pleased” with Wednesday’s decision.
The ruling is likely to anger Democrats, who have accused Attorney General William Barr of improperly meddling in criminal cases to help benefit Trump’s friends and political allies.
The House judiciary committee was hearing from two officials on Wednesday about questionable decisions under Barr’s stewardship, including a prosecutor who resigned in another controversial case involving Trump ally Roger Stone.
Barr himself will appear before the same committee on July 28, it was announced Wednesday.