DC Circuit Orders Judge to Drop Flynn Prosecution

Michael Flynn, President Donald Trump’s former national security adviser, leaves the federal court in Washington after a 2019 status conference. (AP Photo/Manuel Balce Ceneta)

WASHINGTON (CN) — Bringing a swift end to the prosecution of Michael Flynn, the D.C. Circuit ordered a federal judge Wednesday to let the government abandon the case against the former national security adviser. 

“This is plainly not the rare case where further judicial inquiry is warranted,” the 2-1 ruling signed by Trump-appointed U.S. Circuit Judge Neomi Rao states. 

Flynn had also sought to push U.S. District Judge Emmet Sullivan off his case, but the appeals court declined to assign the tangled legal battle to a new judge.

“This case does not meet the ‘high bar’ for reassignment, which would be appropriate only if the district judge’s conduct was ‘so extreme as to display clear inability to render fair judgment,” Rao wrote. 

Writing in dissent, U.S. Circuit Judge Robert L. Wilkins said no appeals court has ever forced the District Court’s hand before allowing the presiding judge to rule. 

“It is a great irony that, in finding the District Court to have exceeded its jurisdiction, this court so grievously oversteps its own,” the Obama appointee wrote.

At 19 pages, Wilkins’ dissent is the same length of Rao’s majority opinion. 

Wilkins pushed back on his colleagues handing Flynn drastic relief, arguing the majority created an impenetrable shield by presuming regularity on the part of the government. 

Rather than immediately granting the government’s motion to dismiss, Sullivan had appointed a retired judge to argue against the Justice Department’s reversal and set a hearing for July. Rao determined that in doing so, Sullivan set the stage for the executive branch to face scrutiny despite its complete discretion when it comes to bringing criminal charges.

“These actions foretell not only that the scrutiny will continue but that it may intensify,” Rao wrote, joined by U.S. Circuit Judge Karen Henderson, a George H. W. Bush appointee.

A retired Army general, Flynn served as President Donald Trump Flynn’s first national security adviser for less than a month before evidence was leaked showing that he had secretly discussed sanctions with a Russian ambassador.

Judge Sullivan took over the prosecution shortly after Flynn pleaded guilty in 2017 to lying to the FBI. Before he could be sentenced, however, Flynn moved to withdraw and asserted actual innocence. The Justice Department meanwhile says it no longer considers what Flynn told the FBI to be materially false.

“This is no mere about-face; it is more akin to turning around an aircraft carrier,” Wilkins wrote of the government’s position.

Rao and Henderson instead focused their attention on the new evidence that the Justice Department says casts doubt on Flynn’s guilt. Flynn’s prosecution was a centerpiece of the investigation by Robert Mueller on Russian meddling in the 2016 U.S. election.

Attorney General Bill Barr commissioned a federal prosecutor from Missouri, U.S. Attorney Jeff Jensen, to investigate their handling of Flynn’s case. As happened when the Justice Department reversed its position on the sentencing of Trump ally Roger Stone, none of the original prosecutors participated in the about-face on Flynn.

This did little, however, to put off the D.C. Circuit majority.

“The justifications the district court offers in support of further inquiry — for instance, that only the U.S. attorney signed the motion, without any line prosecutors, and that the motion is longer than most Rule 48(a) motions — are insufficient to rebut the presumption of regularity to which the government is entitled,” Rao wrote. 

Rao sought to dismantle the dissent by Wilkins with seven separate legal analyses that stretched more than a third of the majority’s opinion. 

“Ultimately, the dissent fails to justify the District Court’s unprecedented intrusions on individual liberty and the executive’s charging authority,” she wrote. 

While the majority conceded that district courts can hold hearings on motions before them, Rao said what Sullivan had sought represented a clear legal error. 

“A hearing cannot be used as an occasion to superintend the prosecution’s charging decisions, because ‘authority over criminal charging decisions resides fundamentally with the executive, without the involvement of — and without oversight power in — the judiciary,’” Rao wrote. 

The fallout from the government’s abrupt move to drop the case has weighed heavily on the Justice Department. Over 2,000 alumni of the agency called for Barr to resign, accusing him of political interference in the case first brought by former special counsel Robert Mueller. 

House Democrats have launched an investigation into Barr as the nation’s top law enforcement officer claiming he has exhibited patterns of conduct that endanger the rule of law. 

Just hours after the D.C. Circuit ruled Wednesday, the House Judiciary Committee heard testimony from two Justice Department “whistleblowers.”

One federal prosecutor who stepped down from the Roger Stone prosecution detailed how the U.S. attorney for the District of Columbia was under pressure from the highest levels of the agency to provide differential treatment to the defendant based on his close ties to the president.

“[Barr] is the president’s fixer,” House Judiciary Chair Jerry Nadler said opening the hearing. “He has shown us that there is one set of rules for the president’s friends and another set of rules for the rest of us.”

Flynn’s attorney Sidney Powell did not respond to a request for comment. Beth Wilkinson, an attorney representing Judge Sullivan in the matter, said she did not have a comment as of Wednesday.

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