July 26, 2021

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U.S. appeals court orders judge to dismiss case against Michael Flynn


Michael Flynn, former U.S. national security adviser, exits federal court in Washington, D.C., on Monday, June 24, 2019.

Andrew Harrer | Bloomberg | Getty Images

 A federal appeals court on Wednesday ordered a lower-court judge to dismiss the criminal case against Michael Flynn, who briefly served as President Donald Trump‘s first national security advisor.

The appeals court ruling came in response to a request from Flynn’s lawyers, after Washington, D.C., federal district court Judge Emmet Sullivan did not promptly grant the Justice Department’s motion seeking to dismiss the case.

Instead, Sullivan had appointed a lawyer to make arguments to him about why the case should not be tossed out.

Flynn, a retired Army lieutenant general, had pleaded guilty to lying to the FBI about his conversations with Russia’s ambassador to the United States in the weeks before Trump’s inauguration in January 2017. But since last year, he and his new lawyer, Sidney Powell had sought to retract his plea.

The U.S. Circuit Court for the District of Columbia Circuit, in its ruling, said that the dismissal request in this case was not the kind of “unusual  case where a more searching inquiry is justified” before granting a dismissal.

The ruling, written by Trump appointee Neomi Rao, also noted that the executive branch of government has “primacy over charging decisions.”

Because of that, “we grant the petition for mandamus in part and order the district  court  to grant the government’s Rule 48(a) motion to dismiss the charges against Flynn,” the court said.

Rao ruled it was appropriate to grant a the so-called writ of mandamus requested by Flynn’s lawyers because Sullivan’s steps to slow-walk his decision on whether to dismiss the case would “will result in specific  harms  to  the  exercise  of  the  Executive  Branch’s exclusive prosecutorial power.”

In a sharp dissent, 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,” Wilkins wrote.

It also appears to be  “the  first  time  any  court  has  held  that  a  district  court  must  grant  “leave  of  court”  pursuant  to  Federal  Rule  of  Criminal  Procedure  48(a)  without even holding a hearing on the merits of the motion; and the first time we have issued the writ even though the petitioner has an adequate alternative remedy, on the theory that another party would not have had an adequate alternate remedy if it had filed a petition as well,” Wilkins wrote.

“Any one of these is sufficient reason to exercise  our  discretion  to  deny  the  petition;  together,  they  compel its rejection,” Wilkins wrote.

This is breaking news. Please check back for updates.



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