The full U.S. Court of Appeals for the District of Columbia Circuit reversed a three-judge appeals court panel decision and denied retired Lt. Gen. Michael Flynn’s effort to have the case against him swiftly dropped.
The 8-2 decision, a significant blow to President Trump’s first national security adviser, was revealed in an 18-page appeals court opinion on Monday, throwing the case back to District Judge Emmet Sullivan, who refused to allow the Justice Department to dismiss it quickly. The two dissenters authored separate dissenting opinions. The politically charged legal fight now threatens to extend up to and past the Nov. 3 presidential election.
“In the absence of any extraordinary harm to Petitioner that would result from waiting to seek our review (if necessary) after the District Court decides the motion in the ordinary course, the writ cannot issue, either to compel the immediate grant of the Government’s motion or to vacate the order appointing amicus. Nor can we conclude that the Government will suffer any irreparable injury without mandamus,” the appeals court concluded. “The Petition for a writ of mandamus is denied. As the underlying criminal case resumes in the District Court, we trust and expect the District Court to proceed with appropriate dispatch.”
Earlier this month, both Flynn’s legal team and the Justice Department had argued unsuccessfully before the full appeals court that the district court judge should be instructed to allow the Justice Department to drop the case. Sullivan’s lawyer said the judge should be allowed to hold a hearing before making a decision on the Justice Department’s motion to dismiss.
Sidney Powell, the former federal prosecutor who took over Flynn’s legal defense last year, and acting Solicitor General Jeff Wall, representing the Justice Department in court following its move to toss the false statements charge against Flynn, clashed with Sullivan’s attorney, Beth Wilkinson, during a four-hour hearing before the 10 skeptical judges.
Powell and Wall argued that Sullivan appeared biased against Flynn, including through his appointment of retired New York Judge John Gleeson as amicus curiae, his resistance to drop the case, and his alleged violation of separation of powers. The Justice Department and Flynn’s team said the en banc appeals court should agree with the three-judge appeals panel ruling from June that ordered the President Bill Clinton appointee to drop the case. Flynn’s team also argued that Sullivan’s alleged bias should disqualify him from handling the case.
Sullivan had asked for a rehearing from the entire appeals court. Wilkinson said he should be allowed to hold a hearing on the Justice Department’s motion to dismiss, saying fears about intrusive questions were speculative.
Flynn, a target of special counsel Robert Mueller’s Russia investigation, pleaded guilty in December 2017 to lying to FBI investigators about his December 2016 conversations with a Russian envoy. But after changing legal teams, Flynn claimed he was innocent and had been set up by the FBI. After Attorney General William Barr appointed U.S. Attorney Jeffrey Jensen to review the Flynn case, a host of new documents deemed exculpatory by Flynn’s lawyers were discovered, and the Justice Department moved to drop the case.
The Justice Department told the district court in May “that continued prosecution of this case would not serve the interests of justice” as it sought to drop its case against Flynn after new records were made public. Instead, Sullivan, an appointee of Clinton who has handled the Flynn case since December 2017, appointed Gleeson to serve as an amicus curiae to present arguments in opposition to the Justice Department’s motion and to explore whether Flynn should be charged with perjury or contempt.
Gleeson has argued that the Justice Department engaged in “a gross abuse of prosecutorial power” in moving to dismiss the Flynn case. Flynn’s team countered, saying, “The irony and sheer duplicity of Amicus’s accusations against the Justice Department now — which is finally exposing the truth — is stunning.”
Flynn’s legal team, led by Powell, and lawyers for the Justice Department argued separately before a three-judge appeals court panel in June. The trio of judges voted 2-1 to instruct the lower court to allow the Justice Department to drop the charges, after which Sullivan asked the full appeals court for relief.
“Quite simply, the only separation-of-powers question we must answer at this juncture is whether the appointment of an amicus and the scheduling of briefing and argument is a clearly, indisputably impermissible intrusion upon Executive authority, because that is all that the District Judge has ordered at this point,” the appeals court said Monday. “We have no trouble answering that question in the negative, because precedent and experience have recognized the authority of courts to appoint an amicus to assist their decision-making in similar circumstances, including in criminal cases and even when the movant is the government.”
Judge Neomi Rao, who was appointed by Trump in 2019, had authored the 2-1 appeals court panel opinion in June telling the lower court to dismiss the case. She was joined by Judge Karen Henderson, appointed to the appeals court in 1990 by President George H.W. Bush. Both women authored dissents to Monday’s full appeals court ruling.
“In Flynn’s case, the prosecution no longer has a prosecutor. Yet the case continues with district court proceedings aimed at uncovering the internal deliberations of the Department,” Rao said in a 31-page dissent. “The majority gestures at the potential harms of such a judicial intrusion into the Executive Branch, but takes a wait-and-see approach, hoping and hinting that the district judge will not take the actions he clearly states he will take. While mandamus remains an extraordinary remedy, it is appropriate here to prevent this judicial usurpation of the executive power and to correct the district court’s abuse of discretion.”
Henderson said in a 10-page dissent, “I believe the trial judge’s conduct patently draws his impartiality into question,” and “I dissent and write separately to explain why the trial judge is disqualified from further participation in this case.” She argued that Sullivan’s “petition for en banc review with no legal support whatsoever therefor manifests, first, that he plainly appears to view himself as a ‘party’; second, and more important, that his attempted action removes any doubt that the appearance of impartiality required of all federal judges has been compromised beyond repair.”
Recently declassified FBI documents show that the counterintelligence briefing FBI agent Joseph Pientka gave to Trump during the 2016 campaign was used as a pretext to gather investigative evidence on the Trump campaign team, including Flynn. Pientka and now-fired FBI Special Agent Peter Strzok interviewed Flynn at FBI Director James Comey’s behest in January 2017.
Documents declassified earlier this year indicate that Strzok abruptly stopped the FBI from closing its investigation into Flynn in early January 2017 at the insistence of the FBI’s “seventh floor” after the bureau had uncovered “no derogatory information” on Flynn.
Notes from Bill Priestap, the FBI’s former head of counterintelligence, show him asking, “What is our goal? Truth/Admission or to get him to lie, so we can prosecute him or get him fired?”
