A federal appeals court Wednesday ordered a trial judge to dismiss the case against President Trump’s first national security adviser, Micheal Flynn, who was ensnared in the Russia collusion probe.
In a 2-1 decision, a three-judge panel on the U.S. Court of Appeals for the D.C. Circuit granted a request by Flynn and the Justice Department to drop the charges.
The court also vacated the trial judge’s appointment of a retired federal judge to argue against the Justice Department’s motion to dismiss, saying he was no longer needed.
Flynn’s attorney Sidney Powell said she was “delighted to see the Rule of Law applied by the D.C. Circuit.”
President Trump also applauded the decision, which exonerates his former associate.
“Great! Appeals Court Upholds Justice Departments Request To Drop Criminal Case Against General Michael Flynn!” he wrote on Twitter.
The next move is up to trial Judge Emmet Sullivan who could try to appeal the decision to the full Circuit Court or even the Supreme Court. It is unclear whether he will do so and if he doesn’t, the next step would be for him to comply.
If unchallenged with more appeals, the decision brings a surprise ending the case. The multiyear legal drama saw Flynn twice plead guilty to lying to the FBI about his conversations with then-Russian Ambassador Sergey Kisylak during the transition period before the Trump administration took over.
Flynn later recanted and sought to change his guilty plea. After two bombshell court documents raised questions about whether Flynn was set up by the FBI, the Justice Department moved to dismiss the case it had been prosecuting for nearly three years.
Judge Sullivan bristled at the Justice Department’s request. He appointed an ex-federal judge, John Gleeson, to argue against the department’s position and consider whether Flynn should be held in contempt for perjury.
In the majority decision, the two judges said trial Judge Sullivan didn’t have enough evidence to question the Justice Department’s prosecutorial decision in the case.
Mr. Gleeson said last week, the move to dismiss the case was “an abuse of power” by the Justice Department.
Judge Sullivan “fails to justify the district court’s unprecedented intrusions on individual liberty and the [Executive Branch’s] charging authority,” wrote Judge Neomi Rao, a Trump appointee, in the majority opinion.
The majority also said that Judge Sullivan had overstepped his authority by questioning the Justice Department’s decisions.
“In this case, the district court’s actions will result in specific harms to the exercise of the Executive Branch’s exclusive prosecutorial power,” Judge Rao wrote.
“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,” she continued.
Judge Robert Wilkins, an Obama appointee, dissented from the opinion, arguing that the Judge Sullivan should have the authority to scrutinize the Justice Department’s dismissal request.
“It is a great irony that, in finding the district court to have exceeded its jurisdiction, this court so grievously oversteps its own,” he wrote. “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.”
The Justice Department last month moved to drop the case, after “a considered review of all the facts and circumstances.”
Justice Department officials said Flynn’s FBI interview was “untethered to and unjustified” because it was conducted “without any legitimate basis.” The Department also said Flynn’s lies were “not material” to the broader Russia probe.
The surprise end to the prosecution came after the FBI unsealed notes raising questions about whether Flynn had been set up. One top FBI official questioned whether the goal of interviewing Flynn was to get him to lie so he could be prosecuted or fired.
Another internal FBI document revealed that the bureau was set to close the case after failing to uncover any wrongdoing. But an anti-Trump FBI official pushed to keep it open after discussing the case with bureau leadership.
One of the top president’s top Senate allies, Judiciary Committee Chairman Lindsey Graham, also praised the decision, noting the Flynn saga had dragged on for almost three years before the case ended.
“Justice. Finally Justice,” the South Carolina Republican said. “Justice delayed is better than no justice.”
The dismissal comes hours before the House Judiciary Committee is scheduled to hold a hearing on allegations that Attorney General William P. Barr has intervened in cases to cut breaks for the president’s associates.
One former Justice Department prosecutor is expected to testify that longtime Trump friend Roger Stone received favorable treatment because of his connection to the president.
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