A federal appeals court in Washington on Monday declined to order the dismissal of the Michael Flynn prosecution, permitting a judge to scrutinize the U.S. Justice Department’s request to dismiss its case against President Donald Trump’s former national security adviser.
The decision keeps the matter at least temporarily alive and rejects efforts by both Flynn’s lawyers and the Justice Department to force the prosecution to be dropped without any further inquiry from the judge, who has for months declined to dismiss it.
Federal prosecutors moved in May to dismiss the prosecution even though Flynn had pleaded guilty and admitted lying to the FBI during the Russia investigation about his Russian contacts during the presidential transition period. He was awaiting sentencing when the government asked to dismiss the case.
But U.S. District Judge Emmet Sullivan, signalling his skepticism at the government’s motion, refused to immediately grant the request and instead appointed a retired federal judge to argue against the Justice Department’s position.
His lawyers then sought to bypass Sullivan and obtain an order from the federal appeals court that would have required the judge to immediately force the judge to dismiss the case.
Dismissal could still happen
At issue before the court was not the merits of the Flynn prosecution but rather whether Sullivan could be forced to grant the Justice Department’s dismissal request without even holding a hearing to scrutinize the basis for the motion.
Such a hearing could still eventually lead to the dismissal of charges.
“We have no trouble answering that question in the negative,” the court wrote in an unsigned, 8-2 opinion.
Flynn was charged as a result of special counsel Robert Mueller’s investigation into possible ties between the 2016 Trump campaign and Russia.
He was questioned by the FBI at the White House, just days after Trump’s inauguration, about his conversations with the then-Russian ambassador to the U.S. pertaining to sanctions that had just been imposed by the Obama administration for election interference.
The conversation alarmed law enforcement and intelligence officials who were already investigating whether the Trump campaign had co-ordinated with Russia to sway the presidential election in Trump’s favour. They were puzzled by the White House’s public insistence that Flynn and the diplomat had not discussed sanctions.
But the Justice Department argued in May that the FBI had insufficient basis to interrogate Flynn about that conversation, which Attorney General William Barr has described as fully appropriate for an incoming national security adviser to have had.
Flynn’s plea in December 2017 included an admission that he received $530,000 US for consulting work from the Turkish government, which was apparently unknown to the Trump campaign. In an op-ed piece in 2016, Flynn argued for the extradition of U.S.-based Fethullah Gulen, a bitter enemy of Turkish President Recep Tayyip Erdogan.
House loses ruling on former White House lawyer McGahn
In a separate 2-1 ruling that is likely to be appealed, the U.S. Court of Appeals for the D.C. Circuit held that the House of Representatives lacks the authority under the Constitution or federal law to ask courts to enforce a subpoena against former White House counsel Don McGahn to appear before a congressional committee.
The latest decision comes weeks after the full appeals court rejected the panel’s initial ruling that would have ended the court fight over whether McGahn must testify before the House’s judiciary committee as part of its investigation of potential obstruction of justice by Trump during Mueller’s investigation.
Court cases over the testimony of presidential advisers are rare because the White House and Congress typically reach an agreement. But Trump directed McGahn not to appear and the Democratic-controlled House filed suit to enforce the subpoena that was first issued in April 2019.
With time running out on the current House session, which ends on Jan. 3, the prospect that McGahn would have to testify already was remote.
House lawmakers had sought McGahn’s testimony because he was a vital witness for Mueller, whose report detailed the president’s outrage over the investigation into Russian interference in the 2016 election and Trump’s efforts to curtail it.