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Dismissal of Michael Flynn Prosecution Ordered by D.C. Federal Appellate Court; Department of Justice Considered FBI Investigation of Former Trump National Security Advisor Improper

The U.S. Court of Appeals for the District of Columbia Circuit, on Wednesday, June 24, by a 2-1 decision, ordered a federal district court to dismiss charges against former Trump National Security Advisor Michael Flynn. Despite Flynn having earlier pled guilty in the prosecution, the Department of Justice had moved to set aside the guilty plea and dismiss the case, due to problems uncovered with the FBI investigation that had given rise to Flynn's prosecution.

The appellate court observed:

"... Specifically, the government points to evidence that the FBI interview at which Flynn allegedly made false statements was 'untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn.'[] In light of this evidence, the government maintains it cannot 'prove either the relevant false statements or their materiality beyond a reasonable doubt.'[] Insufficient evidence is a quintessential justification for dismissing charges. ..." (see link to court opinion below, at 6)

Despite both parties agreeing to the dismissal, the district judge, Emmet Sullivan, had essentially tried to usurp a prosecutorial function, inviting a third party "Friend of the Court" to address whether to ignore the parties to still proceed with sentencing. The appellate court addressed multiple issues, including the limits on a court's role in approving such a motion and, indeed, whether the district court was attempting to intruded upon the role of the executive branch.

The motion specifically being addressed by the appellate court was for a Writ of Mandamus, by which a court orders a government official to carry out a particular action considered necessary to properly fulfill his duties and avoid an abuse of discretion.

The appellate court held:

"Ultimately, the dissent fails to justify the district court’s unprecedented intrusions on individual liberty and the Executive’s charging authority. This is not a case about whether 'a district judge may even hold a hearing on a Rule 48(a) motion.' ... Rather, it is about whether, after the government has explained why a prosecution is no longer in the public interest, the district judge may prolong the prosecution by appointing an amicus, encouraging public participation, and probing the government’s motives. On that, both the Constitution and cases are clear: he may not.

For the foregoing reasons, we grant Flynn’s petition for a writ of mandamus in part and direct the district court to grant the government’s Rule 48(a) motion to dismiss. In light of that grant, we vacate the district court’s order appointing an amicus as moot.[] ..."

President Donald Trump praised the decision, saying that Flynn had been treated horribly. Reuters reported that Trump previously had signaled the prospect of considering a presidential pardon in the case.

Additional Resources:

[PDF] In Re: Michael T. Flynn, Petitioner, On Emergency Petition for a Writ of Mandamus - Court of Appeals for the D.C. Circuit (opinion)

Mandamus - Legal Information Institute, Cornell University Law School

Flynn case hearing, deadlines nixed after court ordered to allow dismissal - Fox

U.S. court orders dismissal of case against former Trump aide Michael Flynn - Reuters

Michael Flynn Gets His Writ; An appellate court orders Judge Sullivan to dismiss the charges - Wall Street Journal

Appeals court panel rules judge must dismiss Michael Flynn case - UPI

Appeals court orders judge to dismiss Flynn charges - The Hill

Appeals Court Orders Judge To Dismiss Michael Flynn Case - Daily Caller

Full appellate court panel must review Flynn decision — because we fear the fix is in - Chicago Sun-Time

Michael Flynn Wins Ruling Ordering Judge to Dismiss Case - Bloomberg

Flynn's Attorney: Appeals Court Ruling 'Was a Big Step Forward' - CNS

Cheney v. United States Dist. Court For D.C. (03-475) 542 U.S. 367 (2004) 334 F.3d 1096.