Appeals court orders dismissal of Michael Flynn prosecution

WASHINGTON – A federal appeals court on Wednesday ordered the dismissal of the criminal case against President Donald Trump’s former national security adviser Michael Flynn, avoiding a protracted court fight that would have delved deeper into the reasoning for the Justice Department’s extraordinary decision to drop the charges.

The U.S. Circuit Court of Appeals for the District of Columbia said in a 2-1 ruling that the Justice Department’s decision to abandon the case against Flynn settles the matter, even though Flynn pleaded guilty to lying to prosecutors in special counsel Robert Mueller’s Russia investigation.

It was a big win for the Justice Department and came as Democrats question whether it has become too politicized and Attorney General William Barr too quick to side with the president, particularly on the Russia probe. The House is holding a hearing Wednesday centred on another unusual move by Barr to overrule his own prosecutors and ask for less prison time for another Trump associate, Roger Stone.

Trump tweeted just moments after the ruling became public: “Great! Appeals Court Upholds Justice Departments Request to Drop Criminal Case Against General Michael Flynn.”

U.S. District Judge Emmet Sullivan had declined to immediately dismiss the case, seeking instead to evaluate on his own the department’s request. He appointed a retired federal judge to argue against the Justice Department’s position and to consider whether Flynn could be held in criminal contempt for perjury. He had set a July 16 hearing to formally hear the request to dismiss the case, but that hearing will not be held now.

The appeals court ruled it was not within a judge’s power to prolong the prosecution or examine why it was overturned.

“This is not the unusual case where a more searching inquiry is justified,” wrote Judge Neomi Rao, a recent nominee of the president, who was joined by Judge Karen LeCraft Henderson.

Flynn was the only White House official charged in Mueller’s investigation into ties between the Trump campaign and Russia. He pleaded guilty to lying to the FBI days after the president’s January 2017 inauguration about conversations he had had during the presidential transition period with the Russian ambassador.

The Justice Department moved to dismiss the case in May as part of a broader effort by Barr to scrutinize, and even undo, some of the decisions reached during the Russia investigation, which he has increasingly disparaged.

In its motion, the department argued that Flynn’s calls with the Russian ambassador – in which they discussed sanctions the Obama administration imposed on Russia for election interference – were appropriate and not material to the underlying counterintelligence investigation. The department also noted that weeks before the interview, the FBI had prepared to close its investigation into Flynn after not finding evidence of a crime.

But the retired judge appointed by Sullivan, John Gleeson, called the Justice Department’s request a “gross abuse” of prosecutorial power and accused the government of creating a pretext to benefit an ally of the president.

Judge Henderson had asked skeptical questions of lawyers for Flynn and the Justice Department during arguments earlier this month, but joined to rule the case dismissed.

In a 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.”

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Associated Press writers Mark Sherman and Michael Balsamo contributed to this report.

Eric Tucker, The Associated Press