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.

WHO DOESN’T LOVE A POSITIVE STORY—OR TWO?

“Great journalism really does make a difference in this world: it can even save kids.”

That’s what a civil rights lawyer wrote to Julia Lurie, the day after her major investigation into a psychiatric hospital chain that uses foster children as “cash cows” published, letting her know he was using her findings that same day in a hearing to keep a child out of one of the facilities we investigated.

That’s awesome. As is the fact that Julia, who spent a full year reporting this challenging story, promptly heard from a Senate committee that will use her work in their own investigation of Universal Health Services. There’s no doubt her revelations will continue to have a big impact in the months and years to come.

Like another story about Mother Jones’ real-world impact.

This one, a multiyear investigation, published in 2021, exposed conditions in sugar work camps in the Dominican Republic owned by Central Romana—the conglomerate behind brands like C&H and Domino, whose product ends up in our Hershey bars and other sweets. A year ago, the Biden administration banned sugar imports from Central Romana. And just recently, we learned of a previously undisclosed investigation from the Department of Homeland Security, looking into working conditions at Central Romana. How big of a deal is this?

“This could be the first time a corporation would be held criminally liable for forced labor in their own supply chains,” according to a retired special agent we talked to.

Wow.

And it is only because Mother Jones is funded primarily by donations from readers that we can mount ambitious, yearlong—or more—investigations like these two stories that are making waves.

About that: It’s unfathomably hard in the news business right now, and we came up about $28,000 short during our recent fall fundraising campaign. We simply have to make that up soon to avoid falling further behind than can be made up for, or needing to somehow trim $1 million from our budget, like happened last year.

If you can, please support the reporting you get from Mother Jones—that exists to make a difference, not a profit—with a donation of any amount today. We need more donations than normal to come in from this specific blurb to help close our funding gap before it gets any bigger.

payment methods

WHO DOESN’T LOVE A POSITIVE STORY—OR TWO?

“Great journalism really does make a difference in this world: it can even save kids.”

That’s what a civil rights lawyer wrote to Julia Lurie, the day after her major investigation into a psychiatric hospital chain that uses foster children as “cash cows” published, letting her know he was using her findings that same day in a hearing to keep a child out of one of the facilities we investigated.

That’s awesome. As is the fact that Julia, who spent a full year reporting this challenging story, promptly heard from a Senate committee that will use her work in their own investigation of Universal Health Services. There’s no doubt her revelations will continue to have a big impact in the months and years to come.

Like another story about Mother Jones’ real-world impact.

This one, a multiyear investigation, published in 2021, exposed conditions in sugar work camps in the Dominican Republic owned by Central Romana—the conglomerate behind brands like C&H and Domino, whose product ends up in our Hershey bars and other sweets. A year ago, the Biden administration banned sugar imports from Central Romana. And just recently, we learned of a previously undisclosed investigation from the Department of Homeland Security, looking into working conditions at Central Romana. How big of a deal is this?

“This could be the first time a corporation would be held criminally liable for forced labor in their own supply chains,” according to a retired special agent we talked to.

Wow.

And it is only because Mother Jones is funded primarily by donations from readers that we can mount ambitious, yearlong—or more—investigations like these two stories that are making waves.

About that: It’s unfathomably hard in the news business right now, and we came up about $28,000 short during our recent fall fundraising campaign. We simply have to make that up soon to avoid falling further behind than can be made up for, or needing to somehow trim $1 million from our budget, like happened last year.

If you can, please support the reporting you get from Mother Jones—that exists to make a difference, not a profit—with a donation of any amount today. We need more donations than normal to come in from this specific blurb to help close our funding gap before it gets any bigger.

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