Appeals Court Grants Michael Flynn Writ; Orders Dismissal of Flynn Case

The U.S. Court of Appeals for the District of Columbia Circuit ordered U.S. District Judge Emmet Sullivan to dismiss General Michael Flynn’s criminal prosecution on June 24th. In a 2-1 decision, the Court granted the extraordinary Writ of Mandamus sought by Flynn’s attorneys and supported by the U.S. Justice Department after Judge Sullivan sought to overturn the Justice Department decision to dismiss Flynn’s case. Judge Sullivan was also seeking to explore charging Flynn with perjury because he sought to withdraw his former guilty plea.

The Department of Justice had moved to dismiss the case after finding significant new evidence showing Flynn’s innocence. The evidence had never been disclosed to the defense prior to Flynn’s guilty plea, procured as the result of legal terror campaign targeting Flynn and his son by Special Counsel Robert Mueller. The Department of Justice review of the Flynn prosecution file, ordered by Attorney General William Barr, had continued even as the Appeals Court Mandamus proceedings were underway. On June 23rd, notes of former FBI Deputy Assistant Director for Counterintelligence, Peter Strzok were turned over to Flynn’s defense. Although barred from public disclosure by a protective order, those who have seen Strzok’s notes described them as “explosive” and “exculpatory.”

The decision was written by Judge Neomi Rao, a Trump appointee, who was joined by veteran D.C. Circuit judge Karen LeCraft Henderson in the majority opinion. Judge Henderson was appointed by President George H.W. Bush. Circuit Judge Robert Wilkins, an Obama appointee, dissented.

The Court of Appeals found that Sullivan’s course of action, appointing a hostile amicus. former U.S. District Judge John Gleeson, to participate as counsel in a hearing to argue against dismissal of the Flynn charges, fatally usurped the executive branch’s sole authority to initiate and terminate criminal prosecutions, violating the Constitution’s separation of powers.

“Based on the record before us, the contemplated hearing would require the government to defend its charging decision on two fronts—answering the district court’s inquiries as well as combatting Gleeson’s arguments,” Judge Rao wrote. Gleeson had proposed an extensive briefing schedule and the need for factual discovery in a motion which Judge Sullivan granted on May 19th, setting a July 16th hearing.

“Moreover, Gleeson encouraged the district court to scrutinize the government’s view of the strength of its case—a core aspect of the Executive’s charging authority, Judge Rao continues. “As explained above, our cases are crystal clear that the district court is without authority to do so . . . In other words, the Court has appointed one private citizen to argue that another private citizen should be deprived of his liberty regardless of whether the Executive Branch is willing to pursue the charges.” Finally, with respect to the circumstances of the Flynn case, the Court noted, “A system that did not allow for discretionary acts of leniency would be totally alien to our system of justice.”

The Court of Appeals ordered Judge Sullivan to dismiss Flynn’s case and vacated Judge Sullivan’s appointment of former Judge Gleeson. It is possible that Judge Sullivan will pursue an appeal to the entire D.C. Circuit Court of Appeals, although many legal experts opine that this is not likely.

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