Michael Flynn case does not have to be immediately dismissed, appeals court rules

WASHINGTON — A federal judge can scrutinize the Justice Department’s decision to drop the criminal case against President Donald Trump’s former national security adviser Michael Flynn, a federal appeals court ruled here Monday, allowing the legal saga to continue.

The divided decision from the full U.S. Court of Appeals for the D.C. Circuit gives U.S. District Judge Emmet Sullivan the go-ahead to question prosecutors’ unusual move to dismiss Flynn’s case ahead of sentencing. The retired general twice pleaded guilty to lying to the FBI about his Russian contacts before Trump took office in 2017.

In an 8-to-2 ruling, the court denied Flynn’s request, backed by the Justice Department, to shut down Sullivan’s planned review and appointment of a retired federal judge to argue against the government’s position.

The decision by the full court reverses an earlier ruling by a three-judge panel of the same court that ordered Sullivan to immediately close the case.

Judge Thomas Griffith said it would be premature for the appeals court to intervene before Sullivan had rendered a decision.

“Today we reach the unexceptional yet important conclusion that a court of appeals should stay its hand and allow the district court to finish its work rather than hear a challenge to a decision not yet made. That is a policy the federal courts have followed since the beginning of the Republic,” Griffith wrote in a statement concurring with the court’s unsigned per curiam order.

Judges Karen Henderson and Neomi Rao filed separate dissents.

In May, Sullivan refused to immediately sign off on the Justice Department’s request to toss the case. Instead he tapped John Gleeson, a retired New York federal judge, to oppose the Justice Department.

Sullivan’s move prompted Flynn’s defense team to petition the D.C. Circuit to get involved midstream and force the judge’s hand. Sullivan hired his own lawyer to defend the court’s authority to investigate whether dismissing the case is in the public interest.

The extraordinary legal battle has raised unsettled questions about the power of the courts to check the executive branch. Federal rules require prosecutors to get permission from the presiding judge — or “leave of court” — to drop charges against a criminal defendant. Legal experts and former judges, however, disagree about the limits of Sullivan’s authority, and in practice, judges typically defer to prosecutors.

But there is nothing typical about this case.

Flynn was the highest-level Trump adviser convicted in special counsel Robert Mueller’s Russia investigation. Instead of proceeding to sentencing, Attorney General William Barr ordered a review of the investigation into Flynn and his dealings with the Russian ambassador to the United States. He then moved to drop the long-running case, saying new evidence showed FBI agents did not have a valid reason to question Flynn, so any lies he told did not amount to a crime.

Flynn’s lawyers told the appeals court that Sullivan had no discretion to continue the case once the government decided to drop it. They also asked the court to reassign the case, accusing Sullivan of bias in his choice of Gleeson to argue the other side. The retired federal judge called the Justice Department’s attempt to undo the conviction politically motivated and “gross abuse of prosecutorial power.”

At oral argument, Jeffrey Wall, the acting solicitor general, also urged the court to block the judge’s review, saying Sullivan has no authority to dig into the administration’s motives for seeking to drop the case.

In response, Sullivan’s lawyer Beth Wilkinson told the court that it was premature and unprecedented to short circuit the judge’s review before Sullivan had an opportunity to render a decision.

Trump and his supporters have rallied behind Barr’s intervention and Flynn’s effort to undo his guilty plea. Supporters say Flynn never should have been interviewed by the FBI. But scores of former and current Justice Department employees say the move is a troubling example of the department bending to political pressure and the president’s interests.