Appeals court orders dismissal of Michael Flynn prosecution

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WASHINGTON - A divided federal appeals court on Wednesday ordered the dismissal of the criminal case against President Donald Trump's former national security adviser Michael Flynn, turning back efforts by a judge to scrutinize the Justice Department's extraordinary decision to drop the prosecution.

The U.S. Circuit Court of Appeals for the District of Columbia said in a 2-1 ruling that the Justice Department's decision to abandon the case against Flynn settles the matter, even though Flynn pleaded guilty as part of special counsel Robert Mueller’s Russia investigation to lying to the FBI.

The ruling, a significant win for both Flynn and the Justice Department, cuts short what could have been a protracted legal fight to dissect the basis for the government's dismissal of the case. It came as Democrats question whether the Justice Department has become too politicized and Attorney General William Barr too quick to side with the president, particularly as he moves to scrutinize — and even undo — some of the results of the Russia probe.

The House Judiciary Committee is holding a hearing Wednesday centered on another unusual move by Barr to overrule his own prosecutors and ask for less prison time for another Trump associate, Roger Stone. Barr has agreed to testify before the panel on July 28, a spokeswoman said Wednesday, and he will almost certainly be pressed about the Flynn case then.

Trump tweeted just moments after the ruling became public: “Great! Appeals Court Upholds Justice Departments Request to Drop Criminal Case Against General Michael Flynn.”

U.S. District Judge Emmet Sullivan had declined to immediately dismiss the case, seeking instead to evaluate on his own the department’s request. He appointed a retired federal judge to argue against the Justice Department's position and to consider whether Flynn could be held in criminal contempt for perjury. He had set a July 16 hearing to formally hear the request to dismiss the case.

Judge Neomi Rao, a Trump nominee who was joined by Judge Karen LeCraft Henderson, wrote that Sullivan had overstepped his bounds by second-guessing the Justice Department's decision. This case, she said, “is not the unusual case where a more searching inquiry is justified.”

“To begin with,” she added, “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."

She called Sullivan's scrutiny of the government's request an “irregular and searching” step that could force the government to justify its decision in this case and others.

“Our precedents emphatically leave prosecutorial charging decisions to the Executive Branch and hold that a court may scrutinize a motion to dismiss only on the extraordinary showing of harassment of the defendant or malfeasance such as bribery — neither of which is manifest in the record before the district court,” she wrote.

Some critics of the Justice Department’s move urged the full appeals court to take up the case and reverse the decision of the three-judge panel, as it is empowered to do.

In a dissent, Judge Robert Wilkins said it was the first time the court had compelled a lower court judge to rule in a particular way without giving the judge a “reasonable opportunity” to reach his or her own conclusion.

“It is a great irony that, in finding the District Court to have exceeded its jurisdiction, this Court so grievously oversteps its own," wrote Wilkins, an appointee of former President Barack Obama.

Flynn was the only White House official charged in Mueller’s investigation into ties between the Trump campaign and Russia.

He pleaded guilty to lying to the FBI days after the president’s January 2017 inauguration about conversations he had had during the presidential transition period with the Russian ambassador, in which the two men discussed sanctions that had been imposed on Russia by the Obama administration for interfering in the election.

The Justice Department moved to dismiss the case in May as part of a broader effort by Barr to revisit some of the decisions reached during the Russia investigation, which he has increasingly disparaged.

In its motion, the department argued that Flynn’s calls with the Russian ambassador were appropriate and not material to the underlying counterintelligence investigation. The department also noted that weeks before the interview, the FBI had prepared to close its investigation into Flynn after not finding evidence of a crime.

But the retired judge appointed by Sullivan, John Gleeson, called the Justice Department’s request a “gross abuse” of prosecutorial power and accused the government of creating a pretext to benefit an ally of the president.

Judge Henderson had asked skeptical questions of lawyers for Flynn and the Justice Department during arguments earlier this month, raising the prospect she would decide in favor of leaving the case in Sullivan's hands. But she ultimately joined in the majority to have the case dismissed.

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Associated Press writers Mark Sherman, Colleen Long and Michael Balsamo contributed to this report.