Neomi Rao testifies before the Senate Judiciary Committee during her confirmation hearing to be U.S. Circuit Judge for the District of Columbia Circuit, on Tuesday, February 5, 2019. Photo: Diego M. Radzinschi/ALM

Updated at 11:39 a.m.

The federal judge presiding over Michael Flynn's prosecution was ordered Wednesday to dismiss the case at the U.S. Justice Department's request, as an appeals court sided with the former Trump national security adviser's bid to shake his admission that he lied to the FBI.

A divided three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said U.S. District Judge Emmet Sullivan lacks authority to undertake a review of the Justice Department's extraordinary decision to drop the case against Flynn, who twice pleaded guilty to lying about his past communications with the Russian ambassador to the U.S.

"This is plainly not the rare case where further judicial inquiry is warranted," Judge Neomi Rao said in the majority decision. "To begin with, Flynn agrees with the government's motion to dismiss, and there has been no allegation that the motion reflects prosecutorial harassment. Additionally, the government's motion includes an extensive discussion of newly discovered evidence casting Flynn's guilt into doubt."

Rao said Sullivan's plan to scrutinize DOJ "will result in specific harms to the exercise of the Executive Branch's exclusive prosecutorial power."

The dispute had teed up a clash over the power of trial judges, and under what circumstances courts can scrutinize the Justice Department's prosecutorial decision-making. Sullivan had set a hearing for July 16 on the Justice Department's move to abandon the prosecution.

The full appeals court has not said whether it will review the panel decision.

When the Justice Department moved to drop the case last month, Sullivan declined to immediately dismiss the prosecution, instead appointing a former federal judge to address his authority to review the government's decision and whether he should consider holding Flynn in contempt for walking back his acknowledgement, under oath, that he lied to the FBI about a conversation with the Russian ambassador to the U.S.

The former judge, John Gleeson, found that Flynn committed perjury in the court proceedings and recommended that Sullivan sentence him on his guilty plea rather than agree to dismiss the case. Gleeson, now a partner at Debevoise & Plimpton, said Sullivan should consider Flynn's alleged perjury at sentencing rather than hold contempt proceedings.

Many former federal prosecutors have applauded Sullivan's move to scrutinize the DOJ's maneuvering in the case, which many had said was done to benefit an ally of Trump. Republican state attorneys general and the National Association of Criminal Defense lawyers filed briefs backing Flynn, represented by former prosecutor Sidney Powell.

Judge Robert Wilkins of the District of Columbia Circuit. Credit: Diego M. Radzinschi / NLJ

In a dissenting opinion, Judge Robert Wilkins wrote: "It is a great irony that, in finding the District Court to have exceeded its jurisdiction, this Court so grievously oversteps its own."

"This appears to be the first time that we have issued a writ of mandamus to compel a district court to rule in a particular manner on a motion without first giving the lower court a reasonable opportunity to issue its own ruling," he added.

Wilkins said in his dissent: "This is no mere about-face; it is more akin to turning around an aircraft carrier."

Sullivan was represented in the trial court and D.C. Circuit by veteran litigator Beth Wilkinson. She had urged the D.C. Circuit not to short-circuit Sullivan's review. Any ruling from Sullivan on the Justice Department's motion to dismiss could be later reviewed, in more routine course, at the D.C. Circuit, Wilkinson argued.

Rao was joined in her opinion by Judge Karen L. Henderson, who had suggested in arguments earlier this month that she was reluctant to step into the Flynn case—at least at its present juncture—and order its immediate dismissal. Calling Sullivan an "old hand" and "excellent trial judge," Henderson said it would be a "drastic remedy" to order the judge to halt his review.

"I don't see why we don't observe regular order and allow him to rule," Henderson said.

Referring to the July 16 hearing Sullivan scheduled, Henderson said, "There's nothing wrong with him holding a hearing, as far as I know."

The retreat from the Flynn case—just months after Attorney General William Barr overruled career prosecutors to recommend a more lenient sentence for Roger Stone—fueled concerns about the Justice Department losing its customary independence under the Trump era.

The D.C. Circuit panel's ruling came the same day one of the career prosecutors involved in Stone's case, Aaron Zelinsky, was set to appear before the House Judiciary Committee at a hearing focused on the politicization of the Justice Department.

In his opening remarks, Zelinsky plans to tell lawmakers that he and other prosecutors were told to reduce their initial sentencing recommendation for Stone, a longtime Trump ally, because the acting U.S. attorney in Washington at the time was "afraid of the president."

 

 

Read the D.C. Circuit's decision below:

 

---

Read more:

Jonathan Kravis, Prosecutor Who Opposed Barr in Stone Case, Joins Munger Tolles

Michael Flynn Should Be Sentenced for Lying to FBI, Court-Appointed Amicus Tells Judge

Don't 'Short-Circuit' Flynn Proceedings, Judge Emmet Sullivan Tells DC Circuit

No 'Rubber Stamps': Emmet Sullivan Has Long Defended Power of Federal Judges

24 Former Federal Judges Support Emmet Sullivan in Flynn's DC Circuit Challenge

Flynn Judge Emmet Sullivan Hires Veteran Trial Lawyer Beth Wilkinson

Barr's Move to Drop Flynn Case Puts Spotlight on 1977 US Supreme Court Ruling