Appeals Courtroom Retains Flynn Case Alive, Received’t Order Dismissal – NBC Los Angeles

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A federal appeals court in Washington on Monday declined to order the Michael Flynn indictment dismissed and allowed a judge to consider the Justice Department's motion to dismiss his case against President Donald Trump's former national security adviser.

The decision keeps the case alive, at least temporarily, and denies efforts by both Flynn's attorneys and the Justice Department to force the prosecution to cease without further investigation by the judge, who has refused to dismiss them for months. The ruling represents the latest development in a criminal case that has taken unusual turns in the last year, leading to a dispute over the separation of powers that involved a senior federal judge and the Trump administration.

In a separate ruling on Monday, a three-judge panel from the same appellate court re-launched a House Democratic lawsuit to compel former White House attorney Don McGahn to appear before a congressional committee.

The Flynn conflict arose in May when the Justice Department dismissed the charges despite Flynn pleading guilty to lying to the FBI about his contacts with the Russian ambassador during the presidential transition.

U.S. District Judge Emmet Sullivan, who reprimanded Flynn for his conduct in court in 2018, expressed skepticism about the government's unusual motion. He refused to dismiss the case and instead scheduled a hearing and appointed a retired federal judge to argue against the Justice Department's position. This former judge, John Gleeson, questioned the rationale behind the division's motion to dismiss, calling it a "gross abuse" of law enforcement powers.

His attorneys then attempted to bypass Sullivan and obtain an appeal court order requiring the case to be dismissed immediately. They argued that the judge exceeded his limits by reviewing a decision agreed on by both sides, the defense and the Justice Department, and that the case was indeed up for discussion once prosecutors decided to abandon it .

The appeals court was concerned with whether Sullivan could be forced to grant the Justice Department's request for dismissal without holding a hearing to consider the basis of the request.

"We have no problem answering this question in the negative," wrote the court in an unsigned opinion for the eight judges in the majority.

The judges also denied defense efforts to remove Sullivan from the case.

In a concurring statement, US District Judge Thomas Griffith wrote that the court's statement did not address the merits of the Justice Department's prosecution of Flynn or the decision to abandon the case. Rather, he said it was much easier to ask the judges.

"Today we come to the not unusual, but important, conclusion that an appeals court should keep a hand and allow the district court to quit instead of hearing a challenge to a decision that has not yet been made," said Griffith. "This is a policy that the federal courts have followed since the beginning of the republic."

He said it was very likely that Sullivan could grant the Justice Department's dismissal request and that it would be "highly unusual if it weren't for the fact that the executive branch has constitutional prerogatives to direct and oversee law enforcement, and the district court's limited discretion "prosecutors want to be dropped."

Two judges, Neomi Rao and Karen LeCraft Henderson, each wrote dissenting opinions, arguing that Sullivan had usurped his authority by keeping a case alive that the Justice Department wanted to dismiss. Both judges were part of a 2-1 ruling in June that ordered Sullivan to dismiss the case.

"In Flynn's case, the prosecution no longer has a prosecutor," wrote Rao. "However, the case continues with legal proceedings aimed at uncovering the ministry's internal deliberations. The majority point to the possible harms of such interference by the judiciary with the executive branch, but wait and see, and hope and suggest the district judge will not take the action he clearly states.

Flynn was questioned by the FBI just days after Trump took office about his talks with the then Russian ambassador to the United States about sanctions that had just been imposed by the Obama administration for meddling in the Russian elections.

The conversation alerted law enforcement and intelligence officials who were already investigating whether the Trump campaign had been coordinated with Russia to sway the presidential election in Trump's favor, and officials were confused that the White House publicly insisted that Flynn and the diplomat had not discussed any sanctions.

Flynn pleaded guilty to lying to the FBI in a signature trace in Robert Mueller's investigation into the relationship between the 2016 Trump campaign and Russia. Flynn agreed to the investigation for months, to work with authorities in hopes of receiving a lighter sentence.

However, while Flynn awaited conviction, Attorney General William Barr appointed a US attorney from St. Louis to investigate the handling of the Flynn case and later upheld the attorney's recommendation to dismiss the case.

The Justice Department said it concluded that the FBI did not have sufficient basis to interrogate Flynn about his conversations with the diplomat, which Barr said were appropriate for an incoming national security advisor, and that statements he made during the Interviews, material was not applicable to the FBI's underlying counterintelligence investigation into the Trump campaign.

Law enforcement officers involved in the investigation strongly disagreed with this conclusion.

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Washington associate press writer Mark Sherman contributed to this report.

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Follow Eric Tucker on Twitter at http://www.twitter.com/etuckerAP

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