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Gen. Flynn’s case dismissal blocked by appeals court; more hearings required

Retired United States Army Lt. Gen. Mike Flynn leaves Trump Tower in Manhattan, New York, on November 18, 2016. (John Taggart/Pool/Sipa USA/TNS)
August 31, 2020

A federal appeals court ruling on Monday will allow the case to continue against retired Army general and former national security adviser Michael Flynn.

A 10-judge panel in the DC Circuit Court of Appeals ruled in an 8-2 decision that District Judge Emmet Sullivan can proceed with a hearing to review the U.S. Department of Justice’s move to dismiss the case against Flynn.

The ruling also effectively overturns Flynn’s attempt to remove Sullivan for the case over concerns of bias. Instead, Sullivan is now permitted to continue holding hearings to analyze the DOJ’s request for dismissal, keeping Flynn’s fate in limbo.

Previously, 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 overturn Sullivan’s decision to permit a friend-of-the-court review of the case, and dismiss the case altogether. A later order then required oral arguments be delivered in front of the full panel of circuit judges.

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 in June 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.”