WASHINGTON – A federal appeals court has ordered the dismissal of the case against Michael Flynn, a decision that likely ends the long and fraught prosecution of President Donald Trump’s former national security adviser.
In a 2-1 ruling Wednesday, the appeals court ordered U.S. District Judge Emmet Sullivan, who has been presiding over the prosecution of Flynn, to dismiss the case. The opinion, authored by D.C. Circuit Court Judge Neomi Rao, called Sullivan’s actions – appointing a third party to challenge the government’s bid to drop its prosecution of Flynn – “unprecedented intrusions on individual liberty” and on the Justice Department’s prosecutorial powers.
The ruling is the latest in the protracted and fraught prosecution of Flynn. The former Army general pleaded guilty in 2017 to lying to the FBI about his communications with a former Russian ambassador and later reversed course, claiming investigators entrapped him into making false statements.
The government, too, reversed course, and sought to dismiss the case. The Justice Department, which tapped an outside prosecutor to review the case, argued that the January 2017 interview, during which Flynn made false statements to the FBI, was “unjustified.” The interview did not have “a legitimate investigative basis,” making Flynn’s statements irrelevant “even if untrue,” the department argued.
Instead of granting dismissal, Sullivan appointed a third party, known as amicus, to challenge the government’s motion to drop the case and to examine whether Flynn had committed perjury for pleading guilty to a crime of which he now claims to be innocent.
In the opinion, Rao described Sullivan’s decision to appoint an amicus a “mistaken understanding” of a judge’s role. Sullivan’s intent to “scrutinize the reasoning and motives of the Department of Justice constitute irreparable harms that cannot be remedied on appeal,” Rao wrote.