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 panel 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 –which include 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 presents a victory for Flynn, who has accused investigators of entrapping him into committing a crime, although the full court could still review the case. 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 lured him into making false statements. The Roger Stone case:Career Justice Department attorneys to tell Congress leadership abused its power in Roger Stone case, other investigationsThe 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.Justice Department spokeswoman Kerri Kupec said the agency is pleased with the decision. Trump also celebrated the ruling in a tweet. White House Press Secretary Kayleigh McEnany called the ruling a "VICTORY for justice and truth."
"All Americans are entitled to equal justice under the law and due process. No American should ever be unjustly targeted by their government," McEnany said in a tweet.The ruling comes amid allegations that the Justice Department has become a political annex of the president. On Tuesday, a Justice Department prosecutor accused the agency's leadership of giving "unprecedentedly favorable treatment" to Roger Stone, another ally of the president. Stone and Flynn are among the half a dozen former Trump campaign aides and associates who were indicted as a result of the special counsel investigation into Russia's interference in the election in 2016.Aaron Zelinksy, one of the attorneys who prosecuted Stone and later resigned from the case in protest, said the agency's leadership from the highest levels pressured them to recommend a lenient sentence for political reasons – a move that a supervisor acknowledged was "unethical and wrong."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.The case, Rao said, is about whether a judge may prolong a prosecution by appointing an amicus and probing the government's motives. "On that, both the Constitution and cases are clear: he may not.""The court has appointed one private citizen to argue that another citizen should be deprived of his liberty regardless of whether the Executive Branch is willing to pursue the charges. Although no decision has yet been made on the motion to dismiss, the district court's judicial supervision ... 'threatens to chill law enforcement by subjecting the prosecutor's motives and decisionmaking to outside inquiry,'" Rao wrote, citing a previous case. Attorneys face tough questions:Appeals court seems unwilling to force dismissal of Michael Flynn caseD.C. Circuit Court Judge Karen Henderson, a George H.W. Bush appointee, agreed with Rao – a surprise given that she was among the judges who seemed unconvinced that Sullivan had exceeded his authority.
During oral arguments earlier this month, Henderson called Sullivan an "excellent" trial judge and said he may ultimately dismiss the case, making an intervention from the appeals court unnecessary."But you also know that the courts said he's not merely a rubber stamp either," Henderson asked Flynn's attorney, Sidney Powell, during the hearing.Among the three judges, Rao seemed the most skeptical of the role of the amicus. "Who is the amicus representing here? When the government decides to drop the prosecution and the defendant agree ... who are they arguing on behalf of?" she asked Beth Wilkinson, who represented Sullivan. Trump appointed Rao to replace Supreme Court Justice Brett Kavanaugh on one of the most powerful appeals courts in the country. During her nomination, Rao came under fire after activists unearthed old opinion pieces she wrote in college about what she considered to be "hysteria over date rape."D.C. Circuit Court Judge Robert Wilkins, a Barack Obama appointee, disagreed with the ruling. In his dissent, Wilkins said fears over judicial intrusion of prosecutorial powers are unrealistic, and Sullivan was merely seeking to hold a hearing on the government's motion to dismiss. The Flynn saga:Justice Department showed 'gross abuse of prosecutorial power' in Michael Flynn case, court-appointed arbiter says"It is not inconsistent with the separation of powers for a district court to conduct regular proceedings and afford consideration to a motion, even if the eventual grant or denial of the motion might intrude on the Executive's exercise of his prosecutorial discretion," Wilkins wrote. Wilkins said the Justice Department has not sufficiently explained its decision to reverse course, saying the move is "no mere about-face" but "more akin to turning around an aircraft carrier." And he criticized his colleagues for deciding that the government's "abrupt reversal on the facts and the law" does not merit further explanation.Sullivan appointed retired federal judge John Gleeson to challenge the Justice Department's motion to dismiss and to examine whether Flynn may have committed perjury.Earlier this month, Gleeson said the Justice Department showed a "gross abuse of prosecutorial power" in its push to drop the case."The Department of Justice has a solemn responsibility to prosecute this case – like every other case – without fear or favor," Gleeson argued. "It has abdicated that responsibility through a gross abuse of prosecutorial power, attempting to provide special treatment to a favored friend and political ally of the President of the United States. It has treated the case like no other, and in doing so has undermined the public’s confidence in the rule of law."
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