Appeals Court Denies Attempt to End Michael Flynn Case

On Monday, the Washington D.C. Court of Appeals ruled that Federal Judge Emmet G. Sullivan may proceed in his review of the Department of Justice’s (DOJ) request to drop the prosecution of Michael T. Flynn, President Trump’s former national security advisor.  Mr. Flynn has pleaded guilty twice to lying to the FBI about conversations with a Russian ambassador.  Surprisingly, in May, the DOJ moved to drop the case.

Since then, all sides have been debating whether Judge Sullivan has to dismiss the case because the DOJ no longer seeks to pursue it or whether the Judge can legally review the case and decide if Attorney General William P. Barr’s decision not to pursue the case was made for illegitimate reasons.  Another point of contention is whether or not if, in finding the dismissal was indeed for improper reasons, Judge Sullivan is empowered to sentence Mr. Flynn anyway.

Full Court Vote on Flynn

 After a three-judge panel from the Court of Appeals ordered, in a 2-1 split decision that Judge Sullivan should dismiss the case against Mr. Flynn without review, the full Court of Appeals voted to erase the decision in favor of a vote by the whole Court. In the full-court vote on Monday, the decision was made to allow Judge Sullivan to review the case before it is dismissed.  Though the decision is unsigned, some believe the vote was 8-2 in favor of review, with two Republican appointees signing dissents.  Judge Thomas Griffith, another Republican appointee who is soon retiring, concurred with the majority opinion.

The Court ruled that it was improper for Mr. Flynn’s lawyer, Sidney Powell, to have asked a three-judge panel to intervene before Judge Sullivan had ruled on the motion to dismiss the case.  The Court noted that Judge Sullivan may well vote in favor of dismissal after holding a hearing, and Powell could then appeal the decision.

The Court also rejected Powell’s assertion that Judge Sullivan had shown bias because he had appointed retired federal judge John Gleeson as an amicus (a “friend of the court”) to critique the governments’ arguments.  The majority stated that amicus hearings are not “impermissible intrusion[s] upon executive authority” because previous courts have appointed an amicus to assist decision-making in similar circumstances.

Why the DOJ attempted to dismiss Flynn’s case

The DOJ’s main reason for attempting to dismiss the case centers around the idea that Flynn’s lies were not material to the FBI’s investigation, and that a jury may acquit Flynn, finding that Flynn had been too belligerently questioned.  The DOJ also expressed concerns about the possibility of Judge Sullivan’s potential access to DOJ’s internal communications, but Judge Sullivan’s lawyer has stated that Judge Sullivan may only ask legal questions and not for more disclosures.  Mr. Gleeson, the amicus, has said the DOJ’s reason for dropping the case implies the existence of a corrupt cover-up to show favoritism to a presidential ally.  He urges Judge Sullivan to sentence Mr. Flynn.

Seek Legal Assistance Today

Since the “Saturday night massacre” during Watergate, there has been an open question of the scope of the US attorney general’s power to make internal decisions benefiting the president’s preferred political appointees and employees without independent scrutiny when there is evidence that those decisions may have been tainted by improper motive.  The Flynn decision suggests a move toward limiting that power and allowing for judicial review of those decisions that affect employees. If you are an employee who needs legal assistance in the workplace, the Law Office of Christopher Q. Davis, located in New York City, can assist you. Contact us today at (646) 430-7930 to schedule a free case evaluation and receive experienced legal counsel.