WASHINGTON — An appeals court just ruled that Mike Flynn shouldn't get a criminal sentence.
The judicial panel ordered the judge in Flynn’s criminal case to grant the Department of Justice’s unorthodox request to drop his case — even though Flynn already pleaded guilty to lying to investigators.
The ruling is sure to please President Trump, who has argued that Flynn, his first national security adviser, was the victim of a “witch hunt” led by overaggressive prosecutors.
But the 2-1 decision is unlikely to tamp down criticism of Trump’s Department of Justice for its unprecedented decision to ask that the case against Flynn be dropped earlier this year. Department alumni have blasted the move as a brazenly political maneuver intended to help an ally of the president, and part of a trend in which the department has used its resources to help Trump’s friends and attack his enemies.
The decision was written by Judge Neomi Rao, who was appointed by Trump after holding a position in Trump’s White House.
“This is not the unusual case where a more searching inquiry is justified,” Judge Rao wrote.
Trump immediately expressed pleasure about the decision on Twitter, calling the decision “great!”
The decision blocks an attempt by the federal judge overseeing Flynn’s criminal case, Judge Emmet Sullivan, to even review the Department of Justice’s request to dismiss the case. Judge Sullivan had expressed skepticism of the department’s motives for backing away from the prosecution of Flynn, who pleaded guilty to one count of lying to the FBI about his conversations with Russia’s ambassador.
Flynn was an early target in the Russia investigation led by special counsel Robert Mueller, who later said Flynn cooperated robustly after pleading guilty. More recently, however, Flynn has attempt to ditch his guilty plea, arguing he was pressured into it.
Judge Sullivan had appointed a retired judge to argue the case against dropping the charge against Flynn, because, he explained, there was no one in court left to make the opposing argument to dropping the case now that Flynn and Trump’s Department of Justice were on the same side.
But this decision now short-circuits that move — unless it’s overturned by the full Washington, D.C. district appeals court meeting all together, or “en banc.” Eventually, the question of whether Judge Sullivan has the right to even review the question of dropping the charges may rise all the way to the Supreme Court.
The appeals court ruling suggested a political split between the judges.
The Trump-appointee, Judge Rao, was joined in her opinion by Judge Karen Henderson, who was appointed by former Republican President George H.W. Bush in 1990. But a third member of the panel, Judge Robert Wilkins, who was appointed by former President Barack Obama in 2014, dissented from the majority opinion, arguing that Judge Sullivan should be able to review the case fully before making a decision about whether to dismiss the case.
Cover: Michael Flynn, President Donald Trump's former national security adviser, leaves the federal court following a status conference with Judge Emmet Sullivan, in Washington, Tuesday, Sept. 10, 2019. (AP Photo/Manuel Balce Ceneta)