Appeals court orders judge to dismiss Michael Flynn case

The ruling was the latest episode in the long-winding Flynn saga.
Image: Former national security adviser Flynn arrives for sentencing hearing at U.S. District Court in Washington
Former national security adviser Michael Flynn arrives for his sentencing hearing at U.S. District Court in Washington on Dec. 18, 2018.Jonathan Ernst / Reuters file

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By Allan Smith and Pete Williams

The U.S. Court of Appeals for the District of Columbia on Wednesday ordered that a federal judge dismiss the case against President Donald Trump's former national security adviser Michael Flynn, ending his long court battle and freeing him of the prospect of a prison sentence.

By a 2-1 vote, a three-judge panel said U.S. District Court Judge Emmet Sullivan had no choice but to grant the Justice Department's motion to drop the case against Flynn.

"Because this is not the unusual case where a more searching inquiry is justified, and because there is no adequate remedy for the intrusion on 'the Executive’s long-settled primacy over charging decisions,' we grant the petition for mandamus in part and order the district court to grant the government’s Rule 48(a) motion to dismiss the charges against Flynn," Judge Neomi Rao, a Trump appointee, wrote in the three-judge panel's majority decision.

Flynn twice pleaded guilty to charges that he lied to FBI agents in Jan. 2017 about his conversations with Russia's ambassador to the U.S. But after an agreement to cooperate with prosecutors fell apart in a separate case involving Flynn's former business partner, Flynn sought to withdraw his plea.

Last month, Flynn asked the appeals court for an order directing U.S. District Judge Emmet Sullivan, who is handling his case, to dismiss it. That came after the Justice Department filed a motion to dismiss the case, which led Sullivan to appoint a retired federal judge to examine the government's justification and to analyze whether Flynn should be separately found in contempt of court for his guilty plea.

Because he was never sentenced, Flynn was never actually convicted so there is no conviction to wipe off the record. If Sullivan follows the appeals court's instructions and formally grants the government's motion to dismiss, the case will be over. Sullivan could also appeal Wednesday's ruling to the U.S. Supreme Court. He has not said whether he would do so. Any judge on the full federal appeals court could also ask to review Wednesday’s decision, which would put it on hold.

Trump was quick to celebrate the decision, tweeting: "Great!"

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

Speaking in the Oval Office later in the day, Trump said he is "very happy" with the ruling, adding that he believes Flynn "was persecuted."

"He’s been exonerated," Trump said. "I want to congratulate him."

Trump in March tweeted that he was "strongly considering a full pardon" for Flynn.

Justice Department spokeswoman Kerri Kupec tweeted on the ruling as well, posting, "WIN in General Flynn's case."

Judge Robert Wilkins, appointed by former President Barack Obama, authored a partial dissent to the court's ruling on Wednesday, saying that the appeals court should have waited to see whether Sullivan granted or denied the government's motion to abandon the case before deciding whether to order him to drop it.

"That is not for us, as a Court of Appeals, to decide in the first instance," he wrote. "Rather, the District Court 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."

In early May, the Justice Department abruptly notified Sullivan it would no longer prosecute the case, saying that Flynn's conduct was not "material" to any investigation and therefore did not violate the law.

After that sudden move, Sullivan appointed retired U.S. District Judge John Gleeson as a friend of the court to offer his views on the case moving forward. Flynn's lawyers had argued that once the government seeks to drop a case, the judge has almost no choice but to accept.

Wednesday's decision also said Sullivan had no authority to appoint Gleeson. Sullivan scheduled a July 16 hearing on whether to let the government to drop Flynn's case.

The ruling comes as a federal prosecutor is set to testify before the House Judiciary Committee Wednesday on what he described as "political influence" in Justice Department decision making in the case against Trump's longtime adviser and confidant Roger Stone.

The prosecutor, Aaron Zelinsky, who has worked at the Justice Department since 2014 and was on the team prosecuting Stone, said he resigned from that team because the Justice Department inappropriately pushed for a lighter sentence.

"I have never seen political influence play a role in prosecutorial decision making, with one exception: United States v. Roger Stone," Zelinsky said in prepared testimony.

Zelinsky was one of four prosecutors who withdrew from the Stone case in February after they were asked to submit a revised filing that invited the judge to impose a more lenient sentence, pressuring the prosecutors to "water down and in some cases outright distort" the nature of Stone's conduct, Zelinsky said.

Daniel Barnes contributed.