Appeals Court Says Bill Barr Can’t Drop Michael Flynn Charges Yet

A lower court judge doesn’t need to dismiss charges against the former Trump aide without review.

Attorney General William Barr testifies before the House Judiciary Committee on July 28, 2020.Chip Somodevilla/CNP via ZUMA Wire

Fight disinformation: Sign up for the free Mother Jones Daily newsletter and follow the news that matters.

The Justice Department will have to defend Attorney General William Barr’s controversial attempt to drop charges against Michael Flynn, the former national security adviser to Donald Trump who pleaded guilty in 2017 to lying to the FBI about his contacts with Russia.

In the latest twist in the legal drama over Flynn’s case, a federal appeals court ruled that US District Court Judge Emmet Sullivan can proceed with a plan to question the Justice Department’s decision to ask that charges against Flynn be dropped. The full court overruled a three-judge panel of appeals court judges who in June ordered Sullivan to agree to end the case against Flynn without review.

Sullivan may yet accept DOJ’s request to drop the Flynn case. But the new ruling means the judge can question the department’s conduct and continue to rely on a former federal judge he appointed to argue against Barr’s decision. That former judge, John Gleeson, called DOJ’s reversal on Flynn, which was ordered by Barr, “corrupt” and “a gross abuse of prosecutorial power” in a June brief.

In March 2017, Trump pressured former FBI Director James Comey to stop investigating Flynn, an act former special counsel Robert Mueller said may have amounted to obstruction of justice. After Flynn’s plea, Trump has railed publicly against the case, claiming without evidence that it constituted part of a plot by former members of the Obama administration to damage him politically. In its motion to drop the Flynn case, the Justice Department argued that Flynn’s lies were not material to the FBI’s investigation into contacts between Trump and Russia.

Gleeson said those arguments were a pretext for DOJ to succumb to political pressure from Trump. Courts have the power to “protect the integrity of their own proceedings from prosecutors who undertake corrupt, politically motivated dismissals,” Gleeson wrote. “That is what has happened here. The Government has engaged in highly irregular conduct to benefit a political ally of the President.”

The full appeals court did not address Gleeson’s claims, instead ruling on a narrower question of whether they should uphold a so-called “writ of mandamus” requiring Sullivan to accept DOJ’s motion without review.

The appeals court ruled that step was unwarranted because Flynn has a less drastic alternative: “The District Court could grant the motion, reject amicus’s arguments, and dismiss the case.” Flynn can always appeal if he believes Sullivan’s actions merit it, the court said.

Sullivan is known for tough treatment of government prosecutors. He famously rebuked federal lawyers for misconduct in their prosecution of the late Sen. Ted Stevens (R-Alaska) while dismissing Stevens’ conviction for ethics violations. Beyond indicating plans to hold a hearing on DOJ’s bid to dismiss the Flynn case, Sullivan has not said how he plans to proceed. But the appeals court ruling opens the door for the judge to scrutinize Barr’s bid to help a Trump ally.

AN IMPORTANT UPDATE

We’re falling behind our online fundraising goals and we can’t sustain coming up short on donations month after month. Perhaps you’ve heard? It is impossibly hard in the news business right now, with layoffs intensifying and fancy new startups and funding going kaput.

The crisis facing journalism and democracy isn’t going away anytime soon. And neither is Mother Jones, our readers, or our unique way of doing in-depth reporting that exists to bring about change.

Which is exactly why, despite the challenges we face, we just took a big gulp and joined forces with the Center for Investigative Reporting, a team of ace journalists who create the amazing podcast and public radio show Reveal.

If you can part with even just a few bucks, please help us pick up the pace of donations. We simply can’t afford to keep falling behind on our fundraising targets month after month.

Editor-in-Chief Clara Jeffery said it well to our team recently, and that team 100 percent includes readers like you who make it all possible: “This is a year to prove that we can pull off this merger, grow our audiences and impact, attract more funding and keep growing. More broadly, it’s a year when the very future of both journalism and democracy is on the line. We have to go for every important story, every reader/listener/viewer, and leave it all on the field. I’m very proud of all the hard work that’s gotten us to this moment, and confident that we can meet it.”

Let’s do this. If you can right now, please support Mother Jones and investigative journalism with an urgently needed donation today.

payment methods

AN IMPORTANT UPDATE

We’re falling behind our online fundraising goals and we can’t sustain coming up short on donations month after month. Perhaps you’ve heard? It is impossibly hard in the news business right now, with layoffs intensifying and fancy new startups and funding going kaput.

The crisis facing journalism and democracy isn’t going away anytime soon. And neither is Mother Jones, our readers, or our unique way of doing in-depth reporting that exists to bring about change.

Which is exactly why, despite the challenges we face, we just took a big gulp and joined forces with the Center for Investigative Reporting, a team of ace journalists who create the amazing podcast and public radio show Reveal.

If you can part with even just a few bucks, please help us pick up the pace of donations. We simply can’t afford to keep falling behind on our fundraising targets month after month.

Editor-in-Chief Clara Jeffery said it well to our team recently, and that team 100 percent includes readers like you who make it all possible: “This is a year to prove that we can pull off this merger, grow our audiences and impact, attract more funding and keep growing. More broadly, it’s a year when the very future of both journalism and democracy is on the line. We have to go for every important story, every reader/listener/viewer, and leave it all on the field. I’m very proud of all the hard work that’s gotten us to this moment, and confident that we can meet it.”

Let’s do this. If you can right now, please support Mother Jones and investigative journalism with an urgently needed donation today.

payment methods

We Recommend

Latest

Sign up for our free newsletter

Subscribe to the Mother Jones Daily to have our top stories delivered directly to your inbox.

Get our award-winning magazine

Save big on a full year of investigations, ideas, and insights.

Subscribe

Support our journalism

Help Mother Jones' reporters dig deep with a tax-deductible donation.

Donate