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US appeals court to reconsider Gen. Michael Flynn’s case dismissal

Former national security advisor Michael Flynn arrives at U.S. District Court in Washington, D.C., for his sentencing hearing on Dec. 18, 2018. (Olivier Douliery/Abaca Press/TNS)
July 30, 2020

A federal appeals court will reconsider a decision to accept the Department of Justice’s dismissal against former national security adviser and retired Army general Michael Flynn.

A three-judge panel by the U.S. Court of Appeals for the District of Columbia Circuit had decided in a 2-1 decision on June 24 to order U.S. District Court Judge Emmet Sullivan to overturn Sullivan’s decision to permit a friend-of-the-court review of the case, and dismiss the case altogether.

However, the new order released on Thursday now requires oral arguments to be delivered in front of 11 circuit judges on August 11, effectively prolonging Flynn’s case and his fate.

The Department of Justice had filed documents on May 7 moving to dismiss Flynn’s case “after a considered review of all the facts and circumstances of this case, including newly discovered and disclosed information.”

U.S. Attorney Jeff Jensen, who reviewed the Flynn case, recommended that Attorney General Bill Barr dismiss the case in May.

“Through the course of my review of General Flynn’s case, I concluded the proper and just course was to dismiss the case,” Jensen said in a statement obtained by The Associated Press. “I briefed Attorney General Barr on my findings, advised him on these conclusions, and he agreed.”

Judge Sullivan did not immediately accept the DOJ’s decision, instead moving to appoint third-party counsel to challenge the DOJ’s decision via a friend-of-the-court review.

Flynn’s legal team petitioned the decision and requested the DOJ’s dismissal be followed. The three-judge appeals panel had agreed that Sullivan could not extend the case.

Flynn, 61, had pleaded guilty in federal court in Washington, D.C., on Dec. 1, 2017, for providing a false statement to the FBI about his contact with Moscow’s then-ambassador to the United States, Sergei Kislya, during President Trump’s 2016 presidential campaign. Flynn was an advisor on the Trump campaign.

Transcripts of the call that were declassified and released earlier this month showed no wrongdoing, according to Republican lawmakers, although Democrats maintain that he lied when discussing the call with the FBI.

Flynn had filed to withdraw his guilty plea last year, while arguing prosecutorial misconduct and accusing prosecutors of withholding information considered “favorable” to Flynn.

Internal FBI notes unsealed in late April suggest agents deliberated a “goal” of getting Flynn to lie during an interview that ultimately resulted in his firing from the White House and prosecuted by Robert Mueller’s special counsel team.

The notes, handwritten by the FBI’s former head of counterintelligence Bill Priestap after a meeting with then-FBI Director James Comey and then-FBI Deputy Director Andrew McCabe, suggest the FBI wanted to draw Flynn into a lie if they couldn’t get him to admit to a violation of the Logan Act, which forbids U.S. citizens from conducting foreign diplomacy without authorization.

The DOJ contended in May that Flynn’s Jan. 24, 2017 interview was “conducted without any legitimate investigative basis” and was “untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn.”