by Eric Tucker
WASHINGTON, D.C. (AP) — A federal appeals court in Washington declined Monday to order the dismissal of the Michael Flynn prosecution, permitting a judge to scrutinize the Justice Department’s request to dismiss its case against President Donald Trump’s former national security adviser.
The decision keeps the case at least temporarily alive and rebuffs efforts by both Flynn’s lawyers and the Justice Department to force the prosecution to be dropped without any further inquiry from the judge, who has for months declined to dismiss it. The ruling represents the latest development in a criminal case that has taken unusual twists and turns over the last year and prompted a separation of powers tussle involving a veteran federal judge and the Trump administration.
In a separate ruling Monday, a three-judge panel of the same appeals court again threw out a lawsuit by House Democrats to compel former White House counsel Don McGahn to appear before a congressional committee.
The Flynn conflict arose in May when the Justice Department moved to dismiss the prosecution despite Flynn’s own guilty plea to lying to the FBI about his contacts with the Russian ambassador during the presidential transition period.
But U.S. District Judge Emmet Sullivan, who had upbraided Flynn for his behavior at a 2018 court appearance, signaled his skepticism at 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. That former judge, John Gleeson, challenged the motives behind the department’s dismissal request and called it a “gross abuse” of prosecutorial power.
His lawyers then sought to bypass Sullivan and obtain a order from the appeals court that would have required the immediate dismissal of the case. They argued that the judge had overstepped his bounds by scrutinizing a decision that both sides, the defense and the Justice Department, were in agreement about and that the case was effectively moot once prosecutors decided to abandon it.
At issue before the appeals court was whether Sullivan could be forced to grant the Justice Department’s dismissal request without even holding a hearing to scrutinize the basis for the motion.
“We have no trouble answering that question in the negative,” the court wrote in an unsigned opinion for the eight judges in the majority.
The judges also rejected defense efforts to have Sullivan removed from the case.
In a concurring opinion, U.S. District Judge Thomas Griffith wrote that the court’s opinion did not concern the merits of the Justice Department’s prosecution of Flynn or even its decision to abandon the case. Rather, he said the question before the judges was a much more simple one.
“Today we reach the unexceptional yet important conclusion that a court of appeals should stay its hand and allow the district court to finish its work rather than hear a challenge to a decision not yet made,” Griffith said. “That is a policy the federal courts have followed since the beginning of the Republic.”
He said it was very possible that Sullivan could wind up granting the Justice Department’s dismissal request and that it would be “highly unusual if it did not, given the Executive’s constitutional prerogative to direct and control prosecutions and the district court’s limited discretion” in cases that prosecutors want dropped.
Two judges, Neomi Rao and Karen LeCraft Henderson, each wrote dissenting opinions arguing that Sullivan had usurped his authority by keeping alive a case the Justice Department sought to have dismissed. 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,” Rao wrote. “Yet the case continues with district court proceedings aimed at uncovering the internal deliberations of the Department. 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.
Flynn was questioned by the FBI just days after Trump’s inauguration about his conversations with the then-Russian ambassador to the U.S. pertaining to sanctions that had just been imposed by the Obama administration for Russian election interference.
The conversation alarmed law enforcement and intelligence officials who were already investigating whether the Trump campaign had coordinated with Russia to sway the presidential election in Trump’s favor, and officials were were puzzled by the White House’s public insistence that Flynn and the diplomat had not discussed sanctions.
Flynn pleaded guilty to lying to the FBI in a signature prosecution in special counsel Robert Mueller’s investigation into ties between the 2016 Trump campaign and Russia. Flynn agreed months into the investigation to cooperate with the authorities in hopes of receiving a lighter sentence.
But as Flynn awaited sentencing, Attorney General William Barr appointed a U.S. attorney from St. Louis to investigate the handling of the Flynn case and later endorsed that prosecutor’s recommendation that the case be dismissed.
The Justice Department said it had concluded that the FBI had an insufficient basis to interrogate Flynn about his conversations with the diplomat, which Barr has said were appropriate for an incoming national security adviser to have had, and that statements he made during the interview were not material to the FBI’s underlying counterintelligence investigation into the Trump campaign.
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Eric Tucker is a reporter with The Associated Press. AP writer Mark Sherman in Washington contributed to this report.
About the Headline Photo: In this Sept. 10, 2019 file photo, Michael Flynn, President Donald Trump’s former national security adviser, leaves the federal court following a status conference in Washington. The arrest of President Donald Trump’s former chief strategist Steve Bannon adds to a growing list of Trump associates ensnared in legal trouble. They include the president’s former campaign chair, Paul Manafort, whom Bannon replaced, his longtime lawyer, Michael Cohen, and his former national security adviser, Michael Flynn. (AP Photo/Manuel Balce Ceneta, File)