Russia Probe

Appeals Court Panel Rules in Favor of Michael Flynn's Release

Majority 2–1 opinion says prosecutors, not judges, have the discretion to drop the case against the former Trump aide.

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A federal judge can and should agree to the Department of Justice's request to drop charges against former national security adviser Michael Flynn, a federal appeals court panel ruled today.

The Justice Department in May moved to get charges against Flynn dismissed. Flynn pleaded guilty to lying to the FBI in 2016 about his communications with Russian Ambassador Sergei Kislyak as Trump's campaign was being investigated over concerns that they were being influenced by the Russian government.

Flynn later attempted to retract his guilty plea, and then earlier this year, representatives from the Department of Justice submitted a motion agreeing with Flynn, stating that they now believe that the intelligence investigation against Flynn lacked a legitimate basis and that his lies to the FBI were not actually material to an investigation.

This was a rather unusual move from the Department of Justice, which has a lengthy record of vociferously defending the prosecution of individuals who have lied to investigators. Rather than accepting the request, U.S. District Judge Emmett Sullivan brought in former federal judge John Gleeson to analyze the case and make an independent recommendation. Gleeson blasted the way the Justice Department was handling the case, arguing that Flynn was being treated differently by the Justice Department due to his relationship with Trump. He recommended that Sullivan move forward and sentence Flynn for his guilty plea. Sullivan had scheduled a hearing in July for attorneys to make their cases.

Flynn's attorneys turned to the D.C. Circuit of the U.S. Court of Appeals to attempt to force Sullivan to accept the Justice Department's request to dismiss the charges. Today, a panel of judges agreed, 2–1, with Flynn and the Justice Department.

Judge Neomi Rao, a Trump appointee, wrote the majority opinion, and its focus was on the many longstanding court precedents giving prosecutors and the executive branch (not judges) the discretion to determine whether to drop a case.

"These clearly established legal principles and the Executive's 'long-settled primacy over charging decisions,' foreclose the district court's proposed scrutiny of the government's motion to dismiss the Flynn prosecution," Rao wrote. "A hearing may sometimes be appropriate before granting leave of court…however, a hearing cannot be used as an occasion to superintend the prosecution's charging decisions, because 'authority over criminal charging decisions resides fundamentally with the Executive, without the involvement of—and without oversight power in—the Judiciary.'"

Judge Robert Wilkins, appointed by President Barack Obama, dissented, writing that it was extremely unusual for the Court of Appeals to force a ruling requiring Sullivan to rule a certain way rather than waiting for Sullivan to issue his own ruling and then deciding whether or not that ruling was legally correct.

This ruling is not the end of the matter. Sullivan can request for a full en banc hearing by the full D.C. Circuit of the U.S. Court of Appeals rather than just a panel, and a judge in the court could also call for a vote for such a hearing.

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  1. Fuck! This is fucking bullshit somebody better do something about this.

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    1. So you have a firm pro-taking political prisoners stance on this one?

      1. Doesn’t he always?

    2. I agree. Obama’s appointee and Sullivan need to be removed from the bench.

  2. Sullivan can request for a full en banc hearing

    What an awkward construction. Typically you request a hearing or ask for a hearing. You don’t “request for” a hearing.

    1. Look at you, forgetting to italicize en banc.

      1. I know, I’m deeply ashamed of my negligence.

        1. Hey at least you’re not a real doctor that has to worry about real negligence.

  3. So a guy flies a big banner over a soccer game in England that says “White Lives Matter.” Because of this, his girlfriend gets fired from her job and then later he gets fired from his job. If it had said “Black Lives Matter” he would have been hailed as a hero. smh

    1. If you didn’t know already, there is no free speech in UK, which is sad. The concept of free speech isn’t really honored anywhere anyway, which is even sadder.

      1. We’re about two weeks away from free speech being declared undeniably racist and being rescinded.

    2. Collective punishment: it’s what the Left does. Canning him would be one thing, but getting his girlfriend fired too?

  4. Gleeson blasted the way the Justice Department was handling the case, arguing that Flynn was being treated differently by the Justice Department due to his relationship with Trump.

    Yes, right from the beginning by the Obama accolytes, not just recently by Trump accolytes.

    1. CNN and NYT have assured me that despite all the readily available information affirming the Obama administration partnered with the intelligence community to make up a story about the incoming president being a Russian asset out of whole cloth and taking down Flynn was a first step in enacting a plan to have him removed, you’re a paranoid conspiracy theorist and Putin, David Duke and a cyborg mashup of Nixon and Hitler (Project Nixler) run the country.

  5. lmao Reason is still doing the Drumpf Russia thing.

    This was a rather unusual move from the Department of Justice, which has a lengthy record of vociferously defending the prosecution of individuals who have lied to investigators.

    If weren’t an absolute drooling retard you’d notice that the DOJ is trying to drop this case on a technicality because it’s much less embarrassing than admitting both of their witnesses are under criminal investigation, one has already been fired for lying, they wrote their notes weeks after the actual interview, the notes were modified by a third party, the DOJ has claimed the notes are lost for years, and if they had to try the case that lie would be revealed. The DOJ is absolutely corruptly covering their ass here and Reason is too invested in Louise Mensch conspiracies to notice.

    1. “lmao Reason is still doing the Drumpf Russia thing.”

      Well, Shackford is really committed to that story.
      If it falls apart, based on the articles he wrote, he has 0 credibility whatsoever.

    2. Yeah and the transcript of the phone call reveals that Flynn and Kysliak did not discuss the sanctions imposed by Obama. The conversation was about the expulsions of Russian diplomats which was a separate matter. This is not an insignificant distinction. If flynn was asked about discussing sanctions he answered truthfully if in fact he denied having done so. We will never have a transcript of the FBI interrogation because none exists. But this under reported fact by itself eviserates the prosecutors case. DOJ continues covering their asses even while the media screeches that they’ve been politicized by Orange Man. And Reason plays along.

  6. This was a rather unusual move from the Department of Justice, which has a lengthy record of vociferously defending the prosecution of individuals who have lied to investigators.

    Imagine writing this on the day we learned that both Obama and Biden requested Flynn investigations *after* the FBI concluded a months long CI.

  7. They say the average American commits at least one felony a day.

    See you in January, Mr. Flynn.

    1. They say the average American commits at least one felony a day.
      See you in January, Mr. Flynn.
      So you expect to be in the same Federal prison as Mr. Flynn in January? Interesting.

  8. it was extremely unusual for the Court of Appeals to force a ruling requiring Sullivan to rule a certain way rather than waiting for Sullivan to issue his own ruling and then deciding whether or not that ruling was legally correct

    It’s clear the guys at the Justice Department know some super-secret handshake that will get them a timely ruling from the Trump appointees on the Court of Appeals when they are being stonewalled on their legitimate request by a U.S. District Judge. They couldn’t possibly have just asked could they? They have to be worried the case will be dismissed on procedural grounds.

    1. They did ask for a dismissal. Sullivan took the unprecedented move of not only not ruling, but appointing an amicus to represent the prosecution and trying to add perjury charges for “falsely” confessing to a crime.

      When a district court judge appoints its own prosecutor, he’s crossed every line.

      I have to disagree with Judge Wilkins on this. This isn’t premature. By appointing an amicus, Judge Sullivan has acted in ways completely unbecoming to a judge.

  9. “Majority 2–1 opinion says prosecutors, not judges, have the discretion to drop the case against the former Trump aide.”

    That wasn’t the way I read it.

    The appeals court appears to have ruled that the judge exceeded his legitimate discretion when he asked for an amicus briefing that amounted to inadmissible testimony. I don’t want to set the defendant free so I think we’ll drum up some new testimony against him apparently isn’t an appropriate way for a judge to behave in a federal court.

    1. Yes. That’s where he exceeded his authority.

  10. This case was a travesty of justice.

    Now General Flynn should start filing civil lawsuits to get his money back, and punish those responsible. POTUS Obama and Brain-Damaged Biden better go get some competent lawyers, cuz they’re about to be sued.

  11. >>a panel of judges agreed, 2–1

    judges. lol.

  12. Reason still does not even mention the fact that the FBI and the DOJ acted reprehensibly in this case. Read Sydney Powell brief to the appellate court, it spells it out pretty well.

    https://static1.squarespace.com/static/5e80e0d236405d1c7b8eaec9/t/5eeaaab3ede85b1599d4ca63/1592437431621/June+17%2C+2020+-+Flynn+Opposition+to+Amicus+Gleeson.pdf

    1. They are trying to figure out a way to ignore the Strokz notes where obama directed comey to put “the right men” on the case.

      1. They seem to have figured out how to ignore a lot of things that have happened regarding this story ever since the senate found Trump not guilty. And shamelessly, somehow.

        1. To be fair, they’re still reporting on it, unlike most of the msm.

  13. How quickly they forget. Obama hated Flynn more than even Trump.

    Flynn was the mastermind of the DIA report(s) ( ca 2012) that repeatedly warned how al Qaeda would resurface en masse as a direct, inevitable result of Obama’s policy flaws in Syria and, particularly, Iraq.

    Yea, Obama, you ended the war in Iraq. Ego part one. Take another bow. It’s what you do.

    Except everyone in the know, especially Flynn, warned His Majesty that his actions would beget a huge power vacuum and allow the Sunni extremists, read jihadists, another bite of the Caliphate apple.

    “No problem, said Obama, “ISIS is the j/v team.”

    Fast forward to Trump naming Flynn as NSA Honcho. Uh oh. That ain’t going to make Obama look too good; his golden legacy and all. Flynn will get a chance to spill the beans. Yet again.

    And make Obama look the fool. With facts. And so…well…scorched earth time.

    1. Are you Scott Horton? This reads like how he speaks.

  14. Wilkins is correct insofar as the order is unusual. It is only unusual because Sullivan’s actions have been so extraordinary. In that sense Wilkins is defending the child who killed his parents based upon him being an orphan.

    And how does Sullivan have standing to request any further review? He is not party to the case, if he were he would no longer be presiding.

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