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 on Wednesday ordered a lower-court judge to dismiss the criminal case against Michael Flynn, who briefly served as President Donald Trump‘s first national security advisor before being investigated and prosecuted for lying to FBI agents.
The 2-1 ruling by the three-judge appeals panel stressed the power of the Department of Justice, which has sought to drop its prosecution of Flynn, to make criminal charging decisions, given its role as an agent of the executive branch of government.
The ruling came in response to a request from Flynn’s lawyers, after Washington, D.C., federal district court Judge Emmet Sullivan did not promptly grant the Justice Department’s motion to dismiss the case.
Instead, Sullivan had appointed a lawyer, the former federal judge John Gleeson, to make arguments to him about why the case should not be tossed out.
The Justice Department’s request to dismiss, Sullivan’s lack of immediate agreement with it, and Flynn’s request that an appeals court force the judge to comply were all extremely unusual moves.
Flynn, a retired Army lieutenant general, 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 in January 2017.
But since last year, he and his new lawyer, Sidney Powell had sought to retract his plea.
The U.S. Circuit Court for the District of Columbia Circuit, in its ruling, said that the dismissal request in this case was not the kind of “unusual case where a more searching inquiry is justified” before granting a dismissal.
The ruling, written by Trump appointee Neomi Rao, also noted that the executive branch of government 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 court said.
Rao ruled it was appropriate to grant a the so-called writ of mandamus requested by Flynn’s lawyers because Sullivan’s steps to slow-walk his decision on whether to dismiss the case would “will result in specific harms to the exercise of the Executive Branch’s exclusive prosecutorial power.”
She added that “it was appropriate to force Sullivan to grant the Justice Department’s dismissal request “to prevent the judicial usurpation of executive power.”
In a sharp dissent, Judge Robert Wilkins wrote, “it is a great irony that, in finding the District Court to have exceeded its jurisdiction, this Court so grievously oversteps its own.”
” 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 …
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