Appeals court orders dismissal of Michael Flynn case

President Trump's former national security advisor Michael Flynn arrives at federal court in Washington in 2018.
(Carolyn Kaster / Associated Press)

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

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 as part of special counsel Robert S. Mueller III’s Russia investigation to lying to the FBI.

The ruling was a significant win for the Justice Department and came as Democrats question whether it has become too politicized and Atty. Gen. William Barr too quick to side with the president, particularly on the Russia inquiry. The House is holding a hearing Wednesday centered 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.

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 Trump nominee, who was joined by Judge Karen LeCraft Henderson.

“To begin with,” she added, “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.

She called Sullivan’s scrutiny of the government’s request an “irregular and searching” step that could force the government to justify its decision in this case and others.

In a dissent, Judge Robert Wilkins said it was the first time the court had compelled a lower court judge to rule in a particular way without giving the judge a “reasonable opportunity” to reach his or her own conclusion.

Trump’s first national security advisor, Michael Flynn, pleaded guilty in December 2017 to lying to the FBI in the Russia investigation. But now he insists his case should be thrown out and the alleged injustice has become a rallying cry for Trump supporters.

“It is a great irony that, in finding the District Court to have exceeded its jurisdiction, this Court so grievously oversteps its own,” wrote Wilkins, a Clinton appointee.

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, in which the two men discussed sanctions that had been imposed on Russia by the Obama administration for interfering in the election.

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 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.

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