The U.S. Court of Appeals for the District of Columbia ruled 2-1 Wednesday that a lower court must grant a request by the Department of Justice (DOJ) to drop its case against former National Security Adviser Lt. Gen. Michael Flynn (Ret.).
Flynn won his request for a writ of mandamus ordering Judge Emmet Sullivan to grant the DOJ’s motion last month.
The appeals court order states:
Upon consideration of the emergency petition for a writ of mandamus, the responses thereto, and the reply, the briefs of amici curiae in support of the parties, and the argument by counsel, it is ORDERED that Flynn’s petition for a writ of mandamus be granted in part; the District Court is directed to grant the government’s Rule 48(a) motion to dismiss; and the District Court’s order appointing an amicus is hereby vacated as moot, in accordance with the opinion of the court filed herein this date.
The appeals court judges in the case were: Karen Henderson, Robert Wilkins, and Neomi Rao. Wilkins is a former President Obama appointee, Rao is a President Trump appointee, and Henderson is a former President George H.W. Bush appointee.
Rao states in her majority decision:
[T]his is plainly not the rare case where further judicial inquiry is warranted. 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’s opinion also makes a constitutional point: “The circumstances of this case demonstrate that mandamus is appropriate to prevent the judicial usurpation of executive power.”
The order also prevents Judge Sullivan from hearing amicus curiae (“friend of the court”) briefs in the case. Sullivan had appointed retired Judge John Gleeson, who had criticized the Trump administration, to argue against dismissing the case.
The court did deny Flynn’s request to have the case reassigned from Sullivan to another judge.
The ruling by the appeals court is a major victory for Flynn and attorney Sidney Powell, and a defeat for special counsel Robert Mueller, former FBI Director James Comey, and “deep state” partisans who had sought to convict Flynn in their pursuit of false allegations of “Russian collusion” against Trump and his 2016 presidential campaign.
Flynn had pleaded guilty of lying to the FBI in 2017, though the FBI itself believed he had not done so. He was allegedly pressured to offer a guilty plea. The FBI was forced to reveal exculpatory evidence after Attorney General William Barr assigned U.S. Attorney Jeffrey Jensen to review irregularities in the case earlier this year.
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