Flynn Loses Bid to Force Judge to Dismiss Criminal Case

Flynn Loses Bid to Force Judge to Dismiss Criminal Case

The D.C. Circuit Court of Appeals ruled in an 8-2 decision that D.C. District Court Judge Emmet Sullivan does not have to grant prosecutors' motion to dismiss the criminal case against former national security adviser Michael Flynn.

In May, the Justice Department moved to dismiss the prosecution even though Flynn himself had pleaded guilty and admitted lying to the FBI during the Russian Federation investigation.

It remains unclear whether the D.C. Circuit's ruling will hold or whether Flynn will appeal to the Supreme Court.

At issue before the court was whether Sullivan could be forced to grant the Justice Department's request without even holding a hearing to scrutinize the basis for the request.

Barr said that findings from a US attorney he had tasked with reviewing the case led him to believe that Flynn's lies during a January 2016 interview with the FBI about his contacts with the Russian ambassador were not actually relevant to a legitimate investigation, and that the case should be dropped.

Trump has said Flynn was treated unfairly in the case.

A spokesperson for the Justice Department did not immediately respond to ABC News' request for comment.

While case dismissals are, by rule, done "leave of court", Flynn's legal team argued that in the vast majority of cases that is a mere formality and this case did not warrant being the rare exception where a judge needed to step in for further review.

Conservatives frustrated by the neverending legal saga have blasted the appeals court's decision as disgraceful. "The Mike Flynn case is an embarrassing stain on this country and its "judges","tweeted TV commentator Dan Bongino. "We don't have judges anymore, only corrupted politicians in black robes".

"The majority gestures at the potential harms of such a judicial intrusion into the Executive Branch, but takes a wait-and-see approach, hoping and hinting that the district judge will not take the actions he clearly states he will take", Rao wrote.

Circuit Court Judge Neomi Rao dissented and argued that Sullivan's "conduct patently draws his impartiality into question".

"But his petition for en banc review with no legal support whatsoever therefor manifests, first, that he plainly appears to view himself as a "party"; second, and more important, that his attempted action removes any doubt that the appearance of impartiality required of all federal judges has been compromised beyond fix", Rao wrote.

Attorney General William Barr's Justice Department said in May it was dropping the case because it determined Flynn's false statements weren't "material" to the agents' investigation into Russian interference in the election. After producing documents revealing that the Federal Bureau of Investigation set out to entrap Flynn, had no valid cause to interview him in the first place, and the prosecutors improperly extorted him into a plea by threatening to charge his son, the Justice Department moved to drop all charges.

While awaiting sentencing by Sullivan, Flynn sought to withdraw his plea, switching lawyers to pursue a scorched-earth approach that accused the Federal Bureau of Investigation of setting him up.

John Gleeson, the former federal judge and mob prosecutor appointed by Sullivan to argue against dismissal, said the government's motion was improper and should be denied.

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