A 2-1 ruling from an appeals court on Wednesday ordered the district-court judge hearing the case against Lt. Gen. Michael Flynn to be dropped.
The decision prompted Department of Justice spokeswoman Kerri Kupec to go to social media with: “WIN in General Flynn’s case. DC Circuit has ruled 2-1, instructing Judge Sullivan to grant DOJ’s motion to dismiss the case.”
Flynn was President Trump’s national security adviser early his in first term in office, and was caught up in a process crime as a result of FBI special counsel Robert Mueller’s “Russia collusion” investigation, which ended with no charges and no evidence the Trump campaign colluded.
That years-long investigation was based on Democrat claims of collusion, and was based at least partly on the now-debunked statements against Trump made in the Steele dossier, a document paid for by Hillary Clinton’s campaign and the Democrat National Committee.
Flynn pleaded guilty to lying to an FBI agent during an interview about a telephone call he had with a Russian official. However, the FBI this year determined that the interview was without legal foundation since the bureau already had a transcript of the telephone call.
It also was revealed that the FBI agents doing the interview discussed how they could trick Flynn into make a false statement, or something similar, so he could be charged.
But Judge Emmet Sullivan had refused to sign off on the DOJ motion to dismiss the case. In fact, he appointed a retired judge to argue against the DOJ motion.
Before the U.S. Court of Appeals for the District of Columbia, Flynn’s defense team argued Sullivan “exceeded its authority under the Constitution” in the appointment of the special prosecutor, and he engaged in a flagrant personal and partisan assault on General Flynn, Attorney General Barr, and the President of the United States.”
The appeals court’s conclusion was: “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.”
It’s a win for Flynn in more than one way. Not only will the case be dropped, but the decision also opens the door for him to sue the government for the millions of dollars he’s spent in legal fees in recent years, at least one analyst confirmed.
Fox reported Flynn’s defense counsel had asked for a writ of mandamus – “essentially an order telling a government official to carry out a certain duty.”
That duty was for Sullivan to approve the DOJ’s motion to dismiss.
The ruling also affirms a long-standing precedent that it is the executive branch that decides what cases to pursue, and courts generally cannot second-guess and take control when the executive decides to drop a case.
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Flynn defense counsel Sidney Powell had charged that the special intervenor who was appointed by Sullivan, retired New York federal judge John Gleeson, engaged in “sheer duplicity” in the case.
“Amicus’s filing is a ‘wrap-up smear.’ It is an affront to the Rule of Law and a raging insult to the citizens of this country who see the abject corruption in this assassination by political prosecution of General Flynn,” Powell said before the appeals court.
“This court exuviated any appearance of neutrality when it unlawfully appointed amicus as its own adversary to make these scurrilous arguments.”
The DOJ moved to drop the case after evidence confirmed Flynn’s claim of a setup, a “perjury trap.”
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There were multiple problems, Flynn’s defense argued, including the fact that Sullivan accepted a guilty plea from Flynn, which reports reveal was submitted under the threat of his son being prosecuted, conflicts of interest for Flynn’s earlier defense team, and exculpatory evidence being withheld by prosecutors.