In a monumental ruling, a federal appeals court denied Michael Flynn's motion to dismiss the DOJ's case against him

Associated PressIn this Dec. 1, 2017, file photo, former President Donald Trump national security adviser Michael Flynn leaves federal court in Washington.
  • A federal US appeals court denied former national security adviser Michael Flynn’s motion to dismiss the Justice Department’s case against him.
  • The order is a monumental defeat for Flynn and the Justice Department, whose lawyers have been arguing for the case’s dismissal for months.
  • A three-judge panel from the appeals court initially ordered the judge overseeing Flynn’s case to comply with the DOJ’s motion to dismiss. But the full ten-member appeals court panel overturned that decision on Monday.
  • The case will now go back to US District Judge Emmet Sullivan, who had asked a veteran former judge and prosecutor to review the DOJ’s motion to dismiss. Sullivan also planned to hold a hearing on the motion that was originally scheduled for July.
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A federal US appeals court denied former national security adviser Michael Flynn’s motion to dismiss the Justice Department’s case against him. The order is a monumental defeat for Flynn, whose lawyers have been arguing for the case’s dismissal for months.

Flynn pleaded guilty in December 2017 to lying to the FBI about his conversations with Russia’s ambassador to the US at the time, Sergey Kislyak, regarding US sanctions against Russia.

The former national security adviser initially cooperated with Robert Mueller’s investigators in the Russia probe. But he later shifted course by hiring new attorneys who took a more combative stance and asked to withdraw Flynn’s guilty plea.

The DOJ also later changed tactics in the Flynn case over the objections of some of the original Mueller prosecutors and asked the judge overseeing the case to dismiss it, citing insufficient evidence against Flynn. The move prompted a swift outcry from House Democrats who said it was a political manoeuvre by Attorney General William Barr to shield Trump associates.

A three-judge panel from the DC circuit court of appeals initially ruled in Flynn and the DOJ’s favour and ordered a lower court judge to toss out the case against the former national security adviser. But the full panel of judges decided to review Flynn’s case last month, marking a potential turning point in the proceedings, because the panel consists of more judges appointed by Democratic presidents (7) than those appointed by Republicans (3).

“As to Petitioner’s first two requests – to compel the immediate grant of the Government’s motion, and to vacate the District Court’s appointment of amicus – Petitioner has not established that he has ‘no other adequate means to attain the relief he desires,'” Monday’s 8-2 ruling said. “We also decline to mandate that the case be reassigned to a different district judge, because Petitioner has not established a clear and indisputable right to reassignment. We therefore deny the Petition.”

The case will now go back to US District Judge Emmet Sullivan, who had previously asked a veteran former judge and prosecutor to review the DOJ’s motion to dismiss. Sullivan also planned to hold a hearing on the motion that was originally scheduled for July.

John Gleeson, the former judge who examined the DOJ’s motion,issued a scathing brief in June saying the department “engaged in highly irregular conduct to benefit a political ally of the President.”

Gleeson added that the DOJ’s claim that there wasn’t enough evidence to prove Flynn made materially false statements “taxes the credulity of the credulous” and was “conclusively disproven by its own briefs filed earlier in this very proceeding.”

Gleeson added that the government’s grounds for dismissing the case also “contradict and ignore this Court’s prior orders, which constitute law of the case. They are riddled with inexplicable and elementary errors of law and fact. And they depart from positions that the Government has taken in other cases.”

There is also “clear evidence of a gross abuse of prosecutorial power” in the motion to dismiss, Gleeson wrote. Rule 48(a) of the federal rules of criminal procedure is meant to protect against “dubious dismissals of criminal cases that would benefit powerful and well-connected defendants.” However, that’s exactly what’s happened in Flynn’s case, Gleeson added.

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