A top federal appeals court on Wednesday ordered a lower court to grant the Department of Justice’s motion to dismiss all charges against Michael Flynn, who previously served as the White House National Security Adviser. In a 2-1 ruling, the federal appellate court for the District of Columbia wrote that Emmet G. Sullivan, the trial judge in Flynn’s case, exceeded his authority under the Constitution and Supreme Court precedent when he refused to grant an unopposed motion by DOJ to dismiss charges against Flynn. The ruling was authored by Circuit Judge Neomi Rao.
“[W]e grant Flynn’s petition for a writ of mandamus in part and direct the district court to grant the government’s Rule 48(a) motion to dismiss,” the court ruled. “In light of that grant, we vacate the district court’s order appointing an amicus as moot.”
Citing court precedent, the appeals court ruled that the alleged rules cited by Sullivan “give[] no power to a district court to deny a prosecutor’s…motion to dismiss charges based on a disagreement with the prosecution’s exercise of charging authority.”
“Whatever the precise scope of Rule 48’s ‘leave of court’ requirement, this is plainly not the rare case where further judicial inquiry is warranted,” the appeals court 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 appeals court also smacked down Sullivan’s decision to hire a shadow private prosecutor to take up the charges against Flynn after DOJ moved to have all charges dismissed following revelations that the Federal Bureau of Investigations (FBI) had inappropriately and illegally targeted Flynn for investigation and prosecution. After Sullivan refused to dismiss the charges against Flynn, Flynn filed a writ of mandamus in the D.C. appeals court asking the court to order Sullivan to dismiss the charges against him.
“[C]learly established legal principles and the Executive’s ‘long-settled primacy over charging decisions’ foreclose the district court’s proposed scrutiny of the government’s motion to dismiss the Flynn prosecution,” the court ruled. “A hearing may sometimes be appropriate before granting leave of court under Rule 48; however, a hearing cannot be used as an occasion to superintend the prosecution’s charging decisions, because ‘authority over criminal charging decisions resides fundamentally with the Executive, without the involvement of—and without oversight power in—the Judiciary.'”
“The district court’s orders appointing an amicus…and scheduling the proposed hearing therefore constitute clear legal error,” the court stated.
Rao, writing for the majority, also noted that Sullivan’s antics imperiled the separation of powers between the executive and judicial branches and, if allowed to continue, would irrepably harm the executive branch and its ability to administer the law.
“In this case, the district court’s actions will result in specific harms to the exercise of the Executive Branch’s exclusive prosecutorial power,” the court noted. “Thus, the district court’s appointment of the amicus and demonstrated intent to scrutinize the reasoning and motives of the Department of Justice constitute irreparable harms that cannot be remedied on appeal.”
While Flynn originally pleaded guilty to charges of making false statements to federal officials, he later fired his defense attorneys, brought on new defense counsel, and moved to withdraw his guilty plea. At the same time, Attorney General William Barr ordered a U.S. attorney to independently investigate whether the government had withheld exculpatory evidence against Flynn that it was required under law to provide him. That review prompted a flurry of disclosures, including handwritten notes from a top FBI official, that showed the FBI had illegally targeted Flynn to “get him fired” and that it had no legal basis to send agents to interview him under false pretenses without counsel present.
Contrary to claims from former Special Counsel Robert Mueller that Flynn had lied to agents about his conversations as the incoming National Security Adviser with Russian ambassador to the U.S. Sergei Kislyak, declassified transcripts showed that Flynn never spoke to Kislyak about financial sanctions levied against Russia individuals following the 2016 election. Instead, Flynn had discussed only expulsions of Russian government personnel that were promulgated under an entirely different process than the one cited by Mueller. That declassified transcripts suggested that it was Mueller and his prosecutors, not Flynn, who made material false statements about the conversations between Flynn and Kislyak.
The appeals court, however, did not accept Flynn’s request to have the case reassigned to a different judge. The court ruled that reassignment was only warranted in extreme cases and that the current facts did not, in the court’s view, necessitate the removal of Sullivan from the proceedings.
