Former US national security adviser Michael Flynn. Picture: REUTERS/JOSHUA ROBERTS
Former US national security adviser Michael Flynn. Picture: REUTERS/JOSHUA ROBERTS

New York — A federal appeals court ordered a judge to immediately dismiss the criminal case against President Donald Trump’s former national security adviser, Michael Flynn.

A three-judge panel on Wednesday said US district judge Emmet Sullivan did not have the authority to examine whether the government’s surprise motion to dismiss the case, in which Flynn pleaded guilty twice to lying to the FBI, was part of a corrupt effort to aid one of Trump’s political allies.

The 2-1 ruling is a win for Trump, who has repeatedly slammed the case against Flynn as part of a broader conspiracy by Democrats to undermine him and his administration. The justice department reversed course on its prosecution of Flynn last month, requesting the court drop the case because Flynn’s lies to the two agents weren’t “material” to the Russia probe and he shouldn’t have been interviewed in the first place.

The panel was divided along party lines, with Trump appointee Neomi Rao joining with George HW Bush appointee Karen Henderson in the majority, and Obama appointee Robert Wilkins dissenting. The split could tee up an appeal to the full circuit court in Washington or even the US supreme court.

The appeals court said such an inquiry would harm the executive branch’s exclusive prosecutorial power. “The contemplated proceedings would likely require the executive to reveal the internal deliberative process behind its exercise of prosecutorial discretion, interfering with the article II charging authority,” Rao wrote for the majority.

Judges sceptical

Despite the panel’s Republican tilt, the decision came as something of a surprise after a June 12 hearing at which all three judges appeared sceptical of intervening in the case before Sullivan issued a ruling on the government’s motion, with Henderson noting that he might yet rule in the government’s favour. The majority said on Wednesday that Sullivan had made “unprecedented intrusions” on the justice department’s authority.

Beth Wilkinson, the lawyer hired by Sullivan to represent him in the appeals court, didn’t immediately return an e-mail seeking comment. But Sullivan declined to rule on the case and  immediately appointed a former federal judge and mob prosecutor, John Gleeson, to argue against the justice department’s dismissal motion.

Gleeson issued a blistering amicus brief saying that the request was a politically motivated attempt to help an ally of the president and should be denied.

Lawyers for Flynn and the government went to the appeals court in Washington to try to stop Sullivan’s probe. They argued at the June 12 hearing that Sullivan was barred by the constitutional separation of powers from doing anything other than immediately granting the justice department’s motion to dismiss.

Sullivan’s lawyer argued that the unusual nature of the case warranted digging deeper into the government’s reasoning.

Trump ally

Gleeson’s brief seemed to weigh heavily on the majority’s thinking. The opinions slammed his assertion that the motion to dismiss was cooked up to help a Trump ally. “He relied on news stories, tweets, and other facts outside the record to contrast the government’s grounds for dismissal here with its rationales for prosecution in other cases,” Rao wrote.

The majority also held that Sullivan had also gone too far by inviting members of the public to file briefs in the case, suggesting “anything but a circumscribed review”.

The case began when Flynn lied to two FBI agents in January 2017 about phone calls with the Russian ambassador, part of Robert Mueller’s investigating foreign interference in the 2016 US election. Fired by Trump soon after, Flynn pleaded guilty twice. He later sought to change his plea.

Wilkins wrote in his dissent that the two other judges had ironically exceeded their own authority while accusing Sullivan of overstepping his. He said the writ of mandamus requested by Flynn is a “drastic and extraordinary remedy” that should only be used when the petitioner has no other means to get relief.

Wilkins wrote, “This appears to be the first time 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.”