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Appeals Court Wavers on Rejecting Activist Judge’s Ruling to Block Flynn Dismissal

'What self-respecting Article III judge would simply jump and enter an order without doing what he could to understand both sides?'

(Headline USA) A federal appeals court in Washington appeared inclined Tuesday to let a judge decide on his own whether to grant the Justice Department’s request to dismiss the criminal case against former Trump administration national security adviser Michael Flynn.

U.S. District Judge Emmet Sullivan, a Bill Clinton appointee, entered into unprecedented territory in judicial activism when he refused to allow the prosecution to dismiss its case against Flynn after newly declassified evidence showed the original FBI investigation was falsely predicated.

However, the appeals court expressed skepticism at arguments from the Justice Department and Flynn’s attorneys that a judge was not empowered to probe the motives behind the government’s decision to abandon the prosecution.

Flynn—under the bad advice of his prior counsel, which also happened to employ Obama Attorney General Eric Holder—accepted a plea deal for lying to the FBI as part of the Mueller investigation into the Trump campaign and Russia.

But notes from the FBI agents preparing for his interview, just days after he assumed office as Trump’s first national security adviser, revealed that the agents intentionally sought to lay a perjury trap for him.

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Later revelations showed that the corruption went all the way to the top, with President Barack Obama, Vice President Joe Biden, then-national security adviser Susan Rice, FBI Director James Comey and others discussing how they might ensnare Flynn by using the antiquated Logan Act of 1799 against him.

The more than three hours of arguments in the appeals court on Tuesday were the latest step in a long-running legal saga that has prompted an extraordinary power struggle between the executive and judicial branches.

The case will almost certainly persist for months if the court rejects Flynn’s efforts to get a speedy dismissal and returns it to Sullivan, who refused to immediately grant the department’s request to drop the prosecution.

The court is not deciding whether the case should be dismissed or whether the Justice Department had good reason to move to drop it in May.

Instead, the question before the court is a more procedural one: whether Flynn’s attorney is entitled to leapfrog Sullivan and get an order from the appeals court forcing him to dismiss the prosecution before Sullivan himself has had the chance to rule.

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A ruling against Flynn would not undo his guilty plea or end the case but simply return it to Sullivan for a hearing on the government’s request to dismiss.

The entire court took up the matter after a three-judge panel, in a 2-1 ruling, ordered Sullivan to dismiss the case.

Several of the judges made clear through their questioning that they were deeply skeptical of arguments that Sullivan was not entitled to scrutinize the department’s decision and second-guess the motives behind it.

Judge Thomas Griffith, an appointee of President George W. Bush, bristled when Flynn’s lawyer, Sidney Powell, characterized as “pretty ministerial” the role of a judge when the government and the defendant both agree that a case should be dismissed.

“It’s not ministerial and you know it’s not,” Griffith said. “So it’s not ministerial, so that means the judge has to do some thinking about it, right?”

Judge Cornelia Pillard, an appointee of President Barack Obama, said that though the Justice Department is entitled to deference, “the integrity and the independence of the court” must also be respected.

She told Jeffrey Wall, the acting solicitor general, that by urging Sullivan to dismiss the case, it was asking him to contradict an order he had already given when he accepted Flynn’s guilty plea nearly two years ago.

“What self-respecting Article III judge would simply jump and enter an order without doing what he could to understand both sides?” Pillard asked, referring to the section of the Constitution that created the judiciary branch.

Flynn was the only White House official charged in special counsel Robert Mueller’s Russia investigation.

He pleaded guilty to lying to the FBI about having discussed sanctions during the presidential transition period with the then-Russian ambassador to the United States.

Flynn was awaiting sentencing when the Justice Department announced in May that it was abandoning the case following an internal review that deterimined the FBI had insufficient basis to question Flynn about his conversations with the diplomat.

Adapted from reporting by the Associated Press

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