WASHINGTON — A divided federal appeals court panel ordered an immediate end on Wednesday to the case against Michael T. Flynn, President Trump’s former national security adviser — delivering a major victory to Mr. Flynn and to the Justice Department, which had sought to drop the case.
In the ruling, two of three judges on a panel for the Court of Appeals for the District of Columbia ordered the trial judge overseeing the matter, Judge Emmet G. Sullivan, to immediately dismiss the case without further review. The third accused his colleagues of “grievously” overstepping their powers, and the full appeals court has the option of reviewing the matter.
The order — a so-called writ of mandamus — came as a surprise, taking its place as yet another twist in the strange legal and political drama surrounding the prosecution of Mr. Flynn, who twice pleaded guilty to lying to F.B.I. agents in the Russia investigation about his conversations in December 2016 with the Russian ambassador to the United States.
Mr. Flynn’s case became a political cause for Mr. Trump and his supporters, who have sought to discredit the broader inquiry into Russia’s interference in the 2016 election and links to the Trump campaign. Earlier this year, Mr. Flynn sought to withdraw his guilty plea, and Attorney General William P. Barr directed prosecutors last month to ask Judge Sullivan to dismiss the case.
But before ruling on that request, Judge Sullivan appointed a former judge to critique the government’s motion. Mr. Flynn’s defense lawyer, Sidney Powell, then asked the federal appeals court to order Judge Sullivan to shut down that review and terminate the matter.
Widely seen as a long shot by many legal experts, her strategy succeeded — at least for now.
The case is “about whether, after the government has explained why a prosecution is no longer in the public interest, the district judge may prolong the prosecution by appointing an amicus, encouraging public participation, and probing the government’s motives,” wrote Judge Neomi Rao, a former White House official whom Mr. Trump appointed to the appeals court last year.
She added: “On that, both the Constitution and cases are clear: He may not.”
The outcome raised the question of whether Judge Sullivan, who has a lawyer representing him in the appeals court, will ask the full appeals court to reverse the order — or whether the full court might use a rarely invoked rule that permits it to order a rehearing on its own, without any petition, if the judges deem the matter to involve “a question of exceptional importance.”
Judge Rao’s decision was joined by Judge Karen L. Henderson, a 1990 appointee of President George Bush. The fact that the two of them turned out to be on the panel had been seen as a good sign for Mr. Flynn because each of them have proved more willing than the majority of their colleagues to interpret the law in Mr. Trump’s favor in other politically charged cases, like disputes over congressional subpoenas for his financial records and whether Congress may see secret grand-jury evidence from the Russia investigation.
But the ruling was nevertheless a surprise because both of them — and Judge Henderson in particular — had asked many questions during oral arguments this month that seemed to signal skepticism about short-circuiting Judge Sullivan’s review before he decided on how to rule on the Justice Department’s motion to dismiss the case.
Kerri Kupec, a Justice Department spokeswoman, celebrated the unexpected result in a Twitter message, writing: “WIN in General Flynn’s case.” Asked for comment, Ms. Kupec added that the department was pleased with the panel’s ruling.
A third judge on the panel, Judge Robert L. Wilkins, a 2014 appointee of President Barack Obama, dissented. He said Judge Sullivan should be permitted to complete his review of the prosecutor’s actions and whether they are impermissible before deciding whether to grant the government’s motion to dismiss, citing the unusual circumstances of the Justice Department’s “abrupt reversal on the facts and the law” and the opacity of what happened.
In a dissenting opinion, he said his colleagues had made a series of mistakes that rendered a “dead letter” the portion of the rule of criminal procedure that said cases may only be dismissed with a judge’s approval, or “leave of the court” — at least in cases where the defense and prosecution agrees that a case should be dropped.
Instead, he argued, the law requires that Judge Sullivan be permitted to rule — and if Mr. Flynn and the Justice Department do not like what he decides, they can then file an appeal.
“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,” he wrote. “I therefore dissent.”
The ruling could effectively end the case, if Judge Sullivan acquiesces. But even if he instead asks the full appeals court to vacate the order and rehear the matter — or the full court decides to intervene on its own — the ruling seemed likely at a minimum to disrupt his plan to hold a hearing on July 16 on whether to dismiss the case.
The outsider whom Judge Sullivan had appointed to critique the Justice Department motion — John Gleeson, a former federal judge — had argued that its arguments for dropping the case were baseless and a “pretext” for an illegitimate political intervention on behalf of a presidential favorite, and urged Judge Sullivan to instead sentence Mr. Flynn.
The Justice Department and Ms. Powell have rejected that critique, arguing that dismissal of the case was both warranted on the facts and that Judge Sullivan had no authority to question the executive branch’s decision not to press forward with a prosecution. Mr. Gleeson was due to file a response to those rebuttals on Wednesday.
Katie Benner contributed reporting.
Source: Elections - nytimes.com
