Trials & Litigation

Judge can't probe DOJ's decision to drop Flynn case, DC Circuit says

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Michael Flynn

Former National Security Adviser Michael Flynn. Photo from

The U.S. Court of Appeals for the District of Columbia Circuit ruled Wednesday that a federal judge can't scrutinize a federal prosecutor's decision to drop the prosecution of former National Security Adviser Michael Flynn.

In a 2-1 decision, the D.C. Circuit ordered U.S. District Judge Emmet Sullivan of Washington, D.C., to drop the case.

The majority opinion by Judge Neomi Rao said Sullivan committed clear error when he appointed a lawyer to argue against dropping the case and scheduled a hearing to consider whether Flynn should be held in contempt for perjury.

Rao is an appointee of President Donald Trump. Her majority opinion was joined by Judge Karen Henderson, an appointee of President George H.W. Bush.

Flynn had previously pleaded guilty to lying to the FBI about his communications with Russia’s ambassador, but he later sought to withdraw the plea. The government said it wanted to drop the case because Flynn’s lies weren’t material to the investigation regarding whether Flynn was an agent of a foreign power.

“This is plainly not the rare case where further judicial inquiry is warranted,” Rao wrote. “To begin with, Flynn agrees with the government’s motion to dismiss, and there has been no allegation that the motion reflects prosecutorial harassment. Additionally, the government’s motion includes an extensive discussion of newly discovered evidence casting Flynn’s guilt into doubt.”

The FBI was moving to close the case, but decided to leave it open for his FBI interview about his conversations with the ambassador, the government said in its motion to dismiss. The FBI already had transcripts of Flynn’s calls with the Russian ambassador, and anything Flynn said about the calls would not have somehow exposed him as beholden to Russia, the government said.

Because the false statements were “untethered to, and unjustified by, the FBI’s counterintelligence investigation,” prosecutors are unable to prove materiality, they argued in the motion.

Rao said the government’s representations about the insufficiency of evidence are entitled to a presumption of regularity.

“In this case, the district court’s actions will result in specific harms to the exercise of the executive branch’s exclusive prosecutorial power,” Rao said. “The contemplated proceedings would likely require the executive to reveal the internal deliberative process behind its exercise of prosecutorial discretion, interfering with the Article II charging authority.”

U.S. District Judge Robert Wilkins argued in a dissent that the appeals court overstepped by ordering dismissal before Sullivan a chance to rule. Wilkins was an appointee of President Barack Obama.

Hat tip to the New York Times, the Washington Post, Politico and CNN, which issued news alerts on the decision.

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