Trump adviser loses appeal for case dismissal

A federal appeals court overwhelmingly rejected on Monday an offer by Michael Flynn, President Donald Trump’s senior national security adviser, to force the swift dismissal of the criminal case in which he was convicted of lying to FBI agents.

In an 8-2 decision, the appeals court judges said Flynn’s request was premature, as U.S. District Court Judge Emmet Sullivan in Washington had yet to rule on the request for dismissal of the Ministry of Justice.

The United States Court of Appeals decision for the District of Columbia Circuit also said Flynn had failed to demonstrate that he had a clear right to have a different judge deal with his case.

The decision returns the case for consideration by Sullivan. Sullivan could reject it, as requested, or reject this request and move on to sentencing Flynn. If he does not dismiss the case, his refusal will certainly be appealed.

“Today we come to the non-exceptional but important conclusion that an appeals court should remain in hand and allow the district court to complete its work rather than hear a challenge to a decision not yet taken” , wrote Judge Thomas Griffith in an opinion concurring with the majority decision.

“It is a policy followed by the federal courts since the beginning of the Republic”. Griffith wrote.

An attorney for Flynn and the Department of Justice did not immediately respond to CNBC’s requests for comment on Monday’s decision.

Flynn, a retired army lieutenant general, pleaded guilty in December 2017 to lying to FBI agents about his conversations with the Russian ambassador to the United States in the weeks leading up to the Trump’s inauguration in January 2017.

He also agreed to cooperate with then-special advocate Robert Mueller’s investigation into Russian interference in the 2016 presidential election.

But after hiring new attorney Sidney Powell in 2019, Flynn began making legal efforts to overturn his guilty plea. The Justice Department opposed those efforts until this spring, when in a stunning reversal, it asked Sullivan to dismiss the case.

In a file calling for the dismissal, acting U.S. District of Columbia attorney Timothy Shea argued that Flynn’s FBI interview was not warranted by a counterintelligence investigation and that his lies about what he had said to a Russian diplomat was not. “hardware” to this probe.

Instead of quickly granting the dismissal, Sullivan asked an independent lawyer for the case to argue before the judge against the Justice Department’s request, and allowed outside parties to weigh in on the matter.

Flynn soon after asked the appeals court to force Sullivan to sign the termination request.

Flynn also demanded that Sullivan be fired. Flynn’s attorneys have said Sullivan overstepped his authority by allowing outside parties to make legal arguments in the case.

At a hearing this month, Powell said Sullivan had “dismissed any semblance of an impartial impartial arbiter” that he should be.

Earlier this summer, a panel of three appeals court judges ruled in Flynn’s favor, saying the case should be dismissed.

But Sullivan then demanded that the entire roster of appeals court judges repeat the case.

He agreed to do it. And in Monday’s ruling, the court ruled in favor of the judge, saying there should be more time to weigh the question of whether to dismiss Flynn’s case.

The court concluded, on the issue of Sullivan’s fairness in the case, that none of the judge’s actions that were cited by Flynn came close to the “very high standard” of “conduct. So extreme that ‘she clearly showed an inability to make a fair judgment. “

Judge Griffith, in his concurring opinion in the decision, wrote: “In cases that attract public attention, it is common for experts and politicians to draft their comments in a way that narrows down the court process to a bit more. than a skirmish in a partisan battle. . “

“The president’s party membership that appoints a judge becomes an explanation of the real reason for the judge’s decision, and the legal reasoning used is seen as a cover for the exercise of gross political power,” wrote Griffith, who was appointed to his seat by President George W. Bush.

“There will undoubtedly be some who today describe the court’s decision in these terms, but they are wrong.”

The two dissenting judges in the opinion, Karen LeCraft Henderson and Neomi Rao, were appointed to their seats by Presidents George HW Bush and Trump, respectively.

Rao, in his dissent, wrote that “in Flynn’s case, the prosecution no longer has a prosecutor,” given the statement by the Department of Justice, which is a branch of the executive branch of government, that he wishes to drop the case.

“Yet the case continues with proceedings in district courts aimed at uncovering the department’s internal deliberations,” Rao wrote. “The majority beckon the potential harms of such a judicial intrusion into the executive branch, but take a wait-and-see approach, hoping and implying that the district judge will not take the actions he clearly states he will take.”

She also wrote that while an appellate court order ordering dismissal would be “an extraordinary remedy, this is to prevent this judicial usurpation of executive power and to correct the abuse of discretion by the district court.”

Henderson wrote in her dissent that she believed “Sullivan’s conduct clearly calls into question his impartiality,” noting Sullivan’s comments at Flynn’s plea hearing, where the judge “the trial judge asked whether Flynn could be guilty of treason and noted his “disgust” and “disdain” for Flynn’s actions. “

Henderson wrote that the judge should also be disqualified because he appealed the decision of the three-judge panel that ordered the dismissal of the Flynn case.

CNBC’s Tucker Higgins contributed to this report

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