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U.S. appeals court orders judge to dismiss case against former Trump national security advisor Michael Flynn

  • A federal appeals court ordered a judge to dismiss the criminal case against Michael Flynn, President Trump’s first national security advisor.
  • The ruling came in response to a request from Flynn’s lawyers, after Judge Emmet Sullivan did not promptly grant the Justice Department’s motion to dismiss the case.
  • Flynn, a retired Army lieutenant general, had pleaded guilty to lying to the FBI about his conversations with Russia’s ambassador in the weeks before Trump’s inauguration in January 2017.
Michael Flynn, former U.S. national security adviser, exits federal court in Washington, D.C., on Monday, June 24, 2019.
Michael Flynn, former U.S. national security adviser, exits federal court in Washington, D.C., on Monday, June 24, 2019. Andrew Harrer | Bloomberg | Getty Images

A federal appeals court Wednesday ordered a judge to dismiss the charge against President Donald Trump’s former national security advisor Michael Flynn, who had pleaded guilty to lying to FBI agents.

The 2-1 ruling by the panel of appellate judges stressed the power of the Department of Justice, which has sought to drop its prosecution of Flynn, to make criminal charging decisions given its status as part of the executive branch.

The ruling came in response to a request for a so-called writ of mandamus, or judicial directive, from Flynn’s lawyers.

The defense attorneys asked the U.S. Circuit Court of Appeals for the District of Columbia Circuit after the trial judge did not promptly grant the Justice Department’s highly unusual motion to dismiss the case.

Instead, Judge Emmet Sullivan appointed a lawyer, former federal judge John Gleeson, to make arguments to him about why the case should not be tossed out. Sullivan also said he would consider arguments for or against the dismissal request from third parties not connected to the case.

Appeals court Judge Neomi Rao, in the decision for the majority Wednesday, wrote that the case is about whether a trial court judge can prolong a criminal case and appoint a so-called friend of the court such as Gleeson as a legal advisor after prosecutors have “explained why a prosecution is no longer in the public interest.”

“On that, both the Constitution and [prior legal] cases are clear: he may not,” wrote Rao, who was appointed by Trump.

It is not clear whether the ruling will be the last word in the case. A judge on the appeals court could ask for a review by all the court’s judges. Such an review, known as an en banc hearing, is not usually granted in the D.C. circuit unless a case “involves a question of exceptional importance,” or is needed to “maintain uniformity of the court’s decisions,”

Beth Wilkinson, an attorney representing Sullivan in the appeals court proceedings, declined CNBC’s request for comment.

Like the Justice Department’s dismissal request, Sullivan’s lack of immediate agreement with it and Flynn’s request that an appeals court force Sullivan to comply were extremely unusual. An en banc review would add to the already odd nature of Flynn’s case.

Trump praised Wednesday’s appeals court ruling, tweeting that it was “Great!”

Trump in an Oval Office meeting later Wednesday said he was very happy with the decision.

The president has been highly critical of the prosecution of Flynn, a retired Army lieutenant general who pleaded guilty in late 2017 to lying to the FBI about his conversations with Russia’s ambassador to the United States in the weeks before Trump’s inauguration.

“We are delighted to see the D.C. Circuit apply the Rule of Law and appreciate the professionalism of the Department of Justice in producing the exculpatory evidence and moving to dismiss a case that should never have been brought,” Flynn lawyer Sidney Powell said in an email to CNBC.

Powell, who replaced Flynn’s previous attorneys, had sought to retract his plea since last year, claiming that prosecutors improperly withheld evidence from Flynn and his earlier defense team.

The Justice Department until last month had strongly fought that effort. It sought to have Flynn sentenced after more than a year of postponements related to his cooperation with then-special counsel Robert Mueller’s investigation of Russian interference in the 2016 presidential election. It also opposed Flynn’s subsequent attempts to withdraw his plea.

But in May, the Justice Department asked Sullivan to dismiss the case.

Then-interim U.S. attorney for the District of Columbia, Timothy Shea, argued in the dismissal motion that the FBI’s interview of Flynn was not justified by a counterintelligence investigation. Shea also wrote that Flynn’s lies about what he said to the Russian ambassador were not “material” to that probe.

Gleeson, in a court filing advising Sullivan to sentence Flynn for his admitted crime, accused the Justice Department of “gross abuse of prosecutorial power” in seeking to drop its case.

Gleeson, a former federal prosecutor, also wrote that the department “has engaged in highly irregular conduct to benefit a political ally of the President.”

Other former prosecutors likewise condemned the Justice Department’s dismissal bid.

At the time of Wednesday’s appeals court ruling, Sullivan was scheduled next month to have a hearing on the dismissal request.

In its ruling, the appeals panel said the dismissal request was not the kind of “unusual case where a more searching inquiry is justified,” such as the one Sullivan had set into motion by appointing Gleeson as a friend of the court.

Rao, in the decision, also said the executive branch has “primacy over charging decisions.”

Because of that, “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,” the ruling said.

Rao wrote that it was appropriate to order Sullivan to dismiss the case after he slow-walked his decision “to prevent the judicial usurpation of executive power.”

Rao was joined in the majority ruling by Judge Karen LeCraft Henderson, who was appointed to her seat by President George H.W. Bush after Whitewater prosecutor Kenneth Starr left the appellate court.

In a sharp dissent to the ruling, Judge Robert Wilkins wrote, “This is no mere about-face; it is more akin to turning around an aircraft  carrier.”

“It is a great irony that, in finding the District Court to have exceeded its jurisdiction, this Court so grievously oversteps its own,” wrote Wilkins, who was appointed by President Barack Obama. 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 also objected to the decision because it did not give Sullivan time to hold a hearing on the merit of the Justice Department’s dismissal request.

At the same time as the ruling Flynn’s case was issued, a federal prosecutor was set to testify before Congress that Justice Department leaders overruled him and other prosecutors involved in the case against Trump friend Roger Stone to recommend a lesser criminal sentence than the one that trial prosecutors had called for.

“I have never seen political influence play a role in prosecutorial decision making, with one exception: United States v. Roger Stone,” the prosecutor, Aaron Zelinsky, said in testimony prepared for the House Judiciary Committee.

Zelinsky and the case’s three other prosecutors withdrew from Stone’s case in February after superiors asked them to revise their recommendations.

Zelinsky said the Justice Department pressured the prosecutors to “water down and in some cases outright distort” the nature of Stone’s conduct. A longtime Republican operative, Stone is awaiting sentencing after being convicted at trial of lying to Congress and witness tampering.

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