A federal appeals court in Washington, D.C., on Wednesday ordered a trial judge to dismiss the criminal case against President Donald Trump's former national security adviser, Michael Flynn.
In a 2-1 decision, the U.S. Court of Appeals for the D.C. Circuit said Flynn's trial judge should have signed off on the Justice Department's motion to dismiss the Flynn case. Flynn asked the appeals court to intervene after U.S. District Judge Emmet Sullivan refused to sign off on the government's motion to dismiss the case against him.
Judge Neomi Rao delivered the majority opinion, saying that Sullivan had no reason to call the prosecution's decision into question. She also emphasized that courts have extremely limited power "to superintend the prosecution's charging decisions because authority over criminal charging decisions resides fundamentally with the executive."
The decision is a boon to Flynn's defense and a repudiation of the district judge. Flynn is not out of the woods yet, however, since the ruling can be appealed to the full D.C. Circuit. If the court decides to review the panel decision, the ultimate outcome will be in doubt well past the November election.
Rao noted that both the defense and the prosecution support the motion to dismiss in light of new evidence that casts doubt on Flynn's guilt. That evidence suggests there was no basis for questioning Flynn about his communications with former Russian ambassador to the United States Sergey Kislyak, meaning any statements he made don't bear on an alleged crime.
"This is not the unusual case where a more searching inquiry is justified," Rao wrote.
The panel declined to assign the case to a new judge, however. Flynn's lawyers have accused Sullivan of bias, writing in one brief to the appeals court that the judge is trying to steal public attention for himself.
"He wants to pitch, bat, run bases, and play shortstop," the filing reads. "In truth, he is way out in left field."
The president welcomed the decision in a Wednesday morning tweet.
In dissent, Judge Robert Wilkins argued that the panel's decision was premature. Wilkins said that the issues are novel and argued the appeals court should not short-circuit the normal process.
"It is a great irony that, in finding the district court to have exceeded its jurisdiction, this court so grievously oversteps its own," he wrote.
The case will now return to the trial court.
In re. Michael Flynn decision by Washington Free Beacon on Scribd