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Appellate court orders Flynn freed from legal purgatory; will the judge overruled by the court listen?

Retired Lt. Gen. Michael Flynn won a major victory on Wednesday when a federal appellate court booted a judge’s attempt to find a reason to punish him even as prosecutors wanted the case dismissed.

A panel of the U.S. Circuit Court of Appeals for the District of Columbia ruled 2-1 that Judge Emmet Sullivan exceeded his authority in rejecting the government’s decision to drop the case against President Donald Trump’s former national security adviser.

The court’s majority directed Sullivan to dismiss the charges, maintaining that allowing him to second guess the Justice Department’s rationale for quitting the case against Flynn would violate the Constitution’s provision for separation of powers.

“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,” the majority’s opinion stated. Moreover, Sullivan’s “demonstrated intent to scrutinize the reasoning and motives of the Department of Justice constitute irreparable harms that cannot be remedied on appeal.” 

It’s unclear what may happen to Flynn now. Sullivan declined to dismiss the case immediately. 

But the interests of justice and the need to halt politically motivated prosecutions dictate that the Justice Department’s petition be granted as soon as possible.   

To recap, Flynn had pleaded guilty to charges of lying to FBI investigators in an interview about his phone conversation with Russia’s ambassador in December 2016.

Flynn fired the lawyers who led him to that deal. Consequently, Flynn’s current legal team and the Trump administration have uncovered key evidence that fell in Flynn’s favor. 

First, his lawyers showed that prosecutors had withheld evidence that could have cleared the retired general. Those records indicated agents had set a perjury trap for Flynn in order to force Flynn out under a cloud of suspicion, or actually prosecute him under the 200-plus-year-old and little-used Logan Act barring individual Americans from foreign policy negotiations. 

Then, declassified records revealed that, contra the report by Special Counsel Robert Mueller, Flynn did not ask the ambassador to encourage his country to “refrain from escalating” its response after President Barack Obama expelled Russian diplomats as punishment for interference in America’s 2016 election. 

Now, evidence has surfaced, through handwritten notes by discredited former FBI agent Peter Strozk, that Obama and Vice President Joe Biden played critical roles in directing the pursuit of Flynn. Strozk’s records indicated that Biden specifically referenced the Logan Act in analyzing how to handle Flynn.

Yet the Justice Department’s petition to drop the case based on evidence that the Obama-era FBI cooked up its rationale for coming after Flynn fell on deaf ears with Judge Sullivan. 

The judge not only declined to grant the petition. He also took the unusual step of hiring a retired federal judge to argue against the Justice Department’s request.      

Writing at The Federalist, columnist Margot Cleveland noted that Sullivan could seek a rehearing before the entire circuit court or appeal to the U.S. Supreme Court — with limited ability to gain access to either venue. Or he could choose to make life hell for Flynn’s lead lawyer after she potentially violated his order on submitting new motions, the latest of which involved Strozk’s notes, before the Justice Department finishes producing all the relevant documents in the case.

Still, Cleveland noted, “The last several months has exposed (sic) another reality: Sullivan does not want transparency if it benefits Flynn and, in turn, Trump.”

Few in Washington ever want that.

It’s time to free Flynn from this purgatory and allow the Trump administration to continue uncovering information about how its predecessor worked to undermine an election and the current president.

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