D.C. Court of Appeals Dismisses Case Against Michael Flynn in Surprise Ruling

By Laura Temme, Esq. on June 24, 2020 | Last updated on August 10, 2021

The D.C. Court of Appeals has overruled District Judge Emmet Sullivan in the case against former national security advisor Michael Flynn, ordering the case to be dismissed.

District Judge Brings In Outside Counsel

In 2017, Flynn pleaded guilty to making false statements to the FBI. Then, he moved to withdraw the plea before sentencing, arguing that the government had breached their plea agreement and failed to produce enough evidence against him.

In May of this year, after President Trump's long campaign to exonerate Flynn, the government abruptly moved to drop all charges. This decision by Attorney General William Barr led to widespread criticism, with many accusing Barr of politicizing the Justice Department.

What happened next took many by surprise. District Judge Emmet Sullivan responded by appointing retired judge John Gleeson to present arguments against the government's motion and explore criminal perjury charges against Flynn. A hearing on these questions was scheduled for July 16.

Flynn filed for a writ of mandamus with the D.C. Court of Appeals.

Panel Opposes Questioning of Charging Decisions

The majority in the 2-1 decision held that Judge Sullivan went beyond his authority in appointing a former judge to argue against Flynn and the Justice Department. Although the Federal Rules of Criminal Procedure require "leave of court" to dismiss charges, the panel concluded that Supreme Court precedent ultimately leaves the decision to prosecutors in all but the most extreme cases.

The panel found the government's motion should be granted, calling insufficient evidence a "quintessential justification for dismissing charges." The majority gave little attention to Judge Sullivan's concerns about the political nature of the motion - such as the fact that it was signed by no prosecutors other than Barr.

"A hearing cannot be used as an occasion to superintend the prosecution's charging decisions," Judge Neomi Rao wrote for the majority. "[T]he Executive Branch must have the authority to decide that further prosecution is not in the interest of justice."

Judge Robert Wilkins dissented, noting that the Court of Appeals took an extraordinary action to step in and overrule Judge Sullivan before a hearing had taken place:

"It is a great irony that, in finding the District Court to have exceeded its jurisdiction, this Court so grievously oversteps its own."

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