A federal appeals court Wednesday dismissed the government’s case against President Trump’s first national security adviser, Micheal Flynn, who was ensnared in the Russia collusion probe.
A three-judge panel in the U.S. Court of Appeals for the D.C. Circuit granted a request by Flynn and the Justice Department in a 2-1 decision.
The court also vacated the trial judge’s appointment of a retired federal judge to argue against the Justice Department’s motion to dismiss.
The court held that the appointment was “moot” since the charges have now been dropped.
In the majority decision, the two judges said trial Judge Emmet Sullivan didn’t have enough evidence to question the Justice Department’s prosecutorial decision in the case.
Judge Sullivan “fails to justify the district court’s unprecedented intrusions on individual liberty and the [Executive Branch’s] charging authority,” wrote Judge Neomi Rao, a Trump appointee, in the majority opinion.
The majority also said that Judge Sullivan had overstepped his authority by questioning the Justice Department’s decisions.
“In this case, the district court’s actions will result in specific harms to the exercise of the Executive Branch’s exclusive prosecutorial power,” Judge Rao wrote.
“If evidence comes to light calling into question the integrity or purpose of an underlying criminal investigation, the Executive Branch must have the authority to decide that further prosecution is not in the interest of justice,” she continued.
Judge Robert Wilkins, an Obama appointee, dissented from the opinion, arguing that the Judge Sullivan should have the authority to scrutinize the Justice Department’s dismissal request.
If unchallenged with additional appeals, the ruling brings a surprising end to the Flynn case, which has dragged through the federal courts for two years.
Flynn twice pleaded guilty to lying to the FBI about his conversations with then-Russian Ambassador Sergey Kislyak in the transition period before the Trump administration took over.
He later recanted and sought to change his guilty plea. After two bombshell court documents raised questions about whether Flynn was set up by the FBI, the Justice Department moved to dismiss the case it had been prosecuting for two years.
But Judge Sullivan bristled at the Justice Department’s request. He appointed an ex-federal judge, John Gleeson, to argue against the department’s position and consider whether Flynn should be held in contempt for perjury.
Mr. Gleeson said last week, the move to dismiss the case was “an abuse of power” by the Justice Department.
The dismissal comes hours before the House Judiciary Committee is scheduled to hold a hearing on allegations that Attorney General William P. Barr has intervened in cases to cut breaks for the president’s associates.
One former Justice Department prosecutor is expected to testify that longtime Trump friend Roger Stone received favorable treatment because of his connection to the president.
