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Appeals Court Orders Lower Judge To Throw Out Michael Flynn Case

Michael Flynn, President Trump's former national security adviser, leaves the E. Barrett Prettyman U.S. Courthouse in June 2019 in Washington, D.C. An appeals court has ordered a judge to drop the case against him, as the Justice Department has requested.
Alex Wroblewski
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Michael Flynn, President Trump's former national security adviser, leaves the E. Barrett Prettyman U.S. Courthouse in June 2019 in Washington, D.C. An appeals court has ordered a judge to drop the case against him, as the Justice Department has requested.

Updated at 2:44 p.m. ET

A federal appeals court in Washington ordered a lower court judge to dismiss the case against former national security adviser Michael Flynn on Wednesday.

That ruling followed earlier arguments by Flynn's attorneys that the matter had become moot after both they and the Justice Department asked for the case to be dropped.

Judge Emmet Sullivan had paused resolving Flynn's case and began a process to find out more about the Justice Department's decision to withdraw its charges, even after Flynn's admissions and pleas of guilt.

By a 2-1 vote, the three-judge panel on the appeals court ruled Wednesday that Sullivan had intruded on the Justice Department's "charging authority" by seeking further investigation after the department moved to dismiss Flynn's case.

An attorney appointed by Sullivan to counsel him about the government's decision in the case called the move to dismiss an abuse of power by the Justice Department because it was interceding in the case of a friend of President Trump's.

Outside critics also have faulted Attorney General William Barr and the Justice Department. House Judiciary Committee Chairman Jerry Nadler, D-N.Y., blasted Barr on Wednesday in a hearing that had been scheduled before the court's ruling.

The attorney general, Nadler said, "has engaged in a clear and dangerous pattern of conduct that began when Mr. Barr took office and continues to this day."

But Trump, Barr and Republicans have cited what they call the importance of newly surfaced evidence in Flynn's case.

The latest example was a page of handwritten notes from the FBI special agent at the center of the case — and much of the controversy — over Flynn and the Russia investigation.

The appeals court also said Wednesday that the executive branch enjoys the privilege to keep confidential the decisions it makes about charging and other aspects of a criminal case.

"In this case, the district court's actions will result in specific harms to the exercise of the executive branch's exclusive prosecutorial power," the judges wrote. "The contemplated proceedings would likely require the executive to reveal the internal deliberative process behind its exercise of prosecutorial discretion, interfering with the Article II charging authority."

Trump hailed the ruling on Twitter.

House Judiciary Committee ranking member Rep. Jim Jordan, R-Ohio, also praised the appeals court ruling at the hearing convened by Nadler.

Jordan called the decision proof that the Obama administration had abused its power and evidence about what Jordan called the need for Barr and today's Justice Department to correct those problems.

"They're not political, they're just right — and you saw that with the decision today," Jordan said.

Next steps unclear in unusual matter

It wasn't immediately clear what next steps Sullivan might pursue or whether the appeals court decision finally ends Flynn's years-long legal odyssey, which has cut a slow and serpentine path for almost the entire Trump administration.

Jessica Roth, a professor at Cardozo School of Law and former federal prosecutor in the Southern District of New York, said on Wednesday that it was hard to overstate just how unusual Flynn's case has been at every stage, including now.

It's not typical for an appeals court to short-circuit a lower court's ongoing proceedings, Roth said, in the way this ruling has.

"Judge Sullivan might well have decided to grant the motion to dismiss, but now the court of appeals has preemptively directed him to do that," Roth said. "To justify this extraordinary intervention, the court of appeals in effect said Judge Sullivan's plan to scrutinize the Department of Justice's reasoning and motives amounted to an irreparable harm such that appellate review could not wait."

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Philip Ewing
Philip Ewing is an election security editor with NPR's Washington Desk. He helps oversee coverage of election security, voting, disinformation, active measures and other issues. Ewing joined the Washington Desk from his previous role as NPR's national security editor, in which he helped direct coverage of the military, intelligence community, counterterrorism, veterans and more. He came to NPR in 2015 from Politico, where he was a Pentagon correspondent and defense editor. Previously, he served as managing editor of, and before that he covered the U.S. Navy for the Military Times newspapers.
Carrie Johnson
Carrie Johnson is NPR's National Justice Correspondent.
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