The full D.C. Circuit Court of Appeals on Monday ruled against allowing the criminal case against former National Security Adviser Michael Flynn to be dismissed as requested by the Department of Justice.
In a highly unusual move, U.S. District Judge Emmet Sullivan, who is overseeing the Flynn case, had responded to the DOJ’s decision to end the case by appointing a former federal judge to file an amicus brief arguing why the prosecution should remain in place.
Flynn then appealed to the D.C. Circuit Court before Sullivan made his final ruling on the matter, arguing the judge was acting as a de facto prosecutor.
In a 2-1 decision in June, a three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia ruled that the DOJ’s decision in May to drop its charges against Flynn should have marked the end of the case.
In response to the June ruling in Flynn’s favor, Sullivan filed a petition last month seeking an “en banc” review by all the judges comprising the appellate court.
Flynn’s legal team argued it is the purview of the executive branch, not the judicial, to determine whether cases should be prosecuted and when it is appropriate to drop the charges.
The full D.C. court, in an 8-2 ruling, rejected that the issue in question involves the separation of powers.
“Quite simply, the only separation-of-powers question we must answer at this juncture is whether the appointment of an amicus and the scheduling of briefing and argument is a clearly, indisputably impermissible intrusion upon Executive authority, because that is all that the District Judge has ordered at this point,” the court’s opinion said.
“We have no trouble answering that question in the negative, because precedent and experience have recognized the authority of courts to appoint an amicus to assist their decision-making in similar circumstances, including in criminal cases and even when the movant is the government,” the opinion continued.
Case dismissals are done “by leave of court,” but Flynn’s attorney contended that is a mere formality when the prosecutor makes a determination the case should not proceed, Fox News reported.
Judge Neomi Rao, joined by Judge Karen Henderson, argued in a dissenting opinion that Sullivan overstepped his bounds.
“By allowing the district court to scrutinize ‘the reasoning and motives’ of the Department of Justice … the majority ducks our obligation to correct judicial usurpations of executive power and leaves Flynn to twist in the wind while the district court pursues a prosecution without a prosecutor,” she wrote.
“The Constitution’s separation of powers and its protections of individual liberty require a different result.”
Flynn pleaded guilty in December 2017 to lying to the FBI about conversations he had with the then-Russian ambassador to the U.S., Sergey Kislyak, in the transition period before President Donald Trump took office.
In January, the retired three-star general sought to withdraw his plea based on alleged misconduct by the FBI.
They said that his calls were not material to the FBI’s underlying counterintelligence investigation about Russian interference in the 2016 election.
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