- The Washington Times - Wednesday, June 24, 2020

A federal appeals court Wednesday ordered the dismissal of criminal charges against President Trump’s former national security adviser, Michael Flynn, prompting the president to demand that Obama-era officials apologize for harassing his administration with the Russia collusion probe.

In another stunning twist, Mr. Flynn’s attorneys said former Vice President Joseph R. Biden, the presumed Democratic presidential nominee, may have “personally raised the idea” of going after Mr. Flynn in a January 2017 meeting with FBI officials.

The surprise developments capped a nearly three-year political and legal drama. Mr. Flynn twice pleaded guilty to lying to the FBI about his conversations with Sergei Kislyak, who was Russia’s ambassador, during the transition period between the Obama and Trump administrations.

The Justice Department last month abruptly moved to dismiss the case after court documents raised questions about whether the Obama-era FBI set up Mr. Flynn. But Judge Emmet Sullivan, who oversaw the trial, did not immediately grant that request and instead ordered a retired federal judge to argue against the Justice Department.

In a 2-1 ruling, the U.S. Court of Appeals for the D.C. Circuit said the trial judge had overstepped his authority.

The decision was hailed as an exoneration by Mr. Trump, who continued his attacks on Obama FBI officials and demanded an apology to Mr. Flynn.

“Is [former FBI Director] James Comey and his band of Dirty Cops going to apologize to General Michael Flynn (and many others) for what they have done to ruin his life? What about Robert Mueller and his Angry Democrat Cronies — Are they going to say, SO SORRY? And what about Obama & Biden,” Mr. Trump said in a post on Twitter.

Mr. Flynn, a retired Army lieutenant general and former director of the Defense Intelligence Agency, was forced to resign in 2017 after less than a month in the Trump White House.

He was one of the highest-profile casualties of the Russia collusion probe, which dogged Mr. Trump for most of his term but did not uncover evidence of a conspiracy with Russian efforts to interfere with the 2016 presidential election.

A handwritten note by anti-Trump FBI agent Peter Strzok in January 2017 — just weeks before the FBI interviewed Mr. Flynn — raises more questions about the investigation and the size of Mr. Biden’s role.

The previously undisclosed document made public by Mr. Flynn’s legal team revealed that Mr. Biden appeared to suggest to Mr. Strzok that Mr. Flynn violated the Logan Act, an obscure law from 1799 that bars U.S. citizens from talking with representatives of foreign powers.

The Logan Act has been used only twice in prosecutions, both times during the 1800s.

In an interview last month, Mr. Biden denied that he was involved in the Flynn investigation while serving as vice president.

“I know nothing about those moves to investigate Michael Flynn,” he said.

The Biden campaign did not return a request for comment to The Washington Times about the Strzok note.

The note also revealed that Mr. Obama told members of his administration that “the right people” should investigate Mr. Flynn.

Mr. Comey, who ran the FBI at the time, acknowledged that Mr. Flynn’s calls with the Russian ambassador “appear legit,” the document appears to say.

Mr. Flynn took a victory lap after the court decision and called conservative commentator Rush Limbaugh’s radio show.

“The decision today is really, it’s a good thing for Gen. Flynn,” he said. “It’s a good thing for me. It’s a good thing for my family. But it’s really a great boost of confidence for the American people in our justice system. Because that’s what this comes down to, is whether or not our justice system is going to have the confidence of the American people.”

Flynn attorney Sidney Powell said she was “delighted to see the Rule of Law applied by the D.C. Circuit.”

The next move is up to Judge Sullivan, who could try to appeal the decision to the full Circuit Court or even the Supreme Court. It is unclear whether he will do so. If he doesn’t, the next step would be for him to comply.

One of the appellate court judges could request en banc hearing even if Judge Sullivan doesn’t.

Late Wednesday, Judge Sullivan issued an order halting all proceedings in the Flynn case. The move buys him some time while he figures out his next steps.

“In light of the Opinion and Order issued by the Court of Appeals on Mr. Flynn’s petition for writ of mandamus, the deadlines and hearing date set forth in the Minute Order of May 19, 2020 are HEREBY STAYED,” Judge Sullivan wrote in the order.

If unchallenged with more appeals, the decision ends the nearly three-year legal drama.

Judge Sullivan bristled at the Justice Department’s initial request to drop the charges. He appointed a former federal judge, John Gleeson, to argue against the department’s position and consider whether Mr. Flynn should be held in contempt for perjury in his guilty pleas. Judge Gleeson argued last week that the move to dismiss the case was “an abuse of power” by the Justice Department.

In the majority decision, the two judges said trial Judge Sullivan didn’t have enough evidence to question the Justice Department’s prosecutorial decision in the case.

Judge Sullivan “fails to justify the district court’s unprecedented intrusions on individual liberty and the [executive branch’s] charging authority,” Judge Neomi Rao, a Trump appointee, wrote in the majority opinion.

The majority also said that Judge Sullivan had overstepped his authority by questioning the Justice Department’s decisions.

“In this case, the district court’s actions will result in specific harms to the exercise of the Executive Branch’s exclusive prosecutorial power,” Judge Rao wrote.

“If evidence comes to light calling into question the integrity or purpose of an underlying criminal investigation, the Executive Branch must have the authority to decide that further prosecution is not in the interest of justice,” she said.

Judge Robert Wilkins, an Obama appointee, dissented from the opinion, arguing that Judge Sullivan should have the authority to scrutinize the Justice Department’s dismissal request.

“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. “This appears to be the first time that we have issued a writ of mandamus to compel a district court to rule in a particular manner on a motion without first giving the lower court a reasonable opportunity to issue its own ruling.”

The Justice Department last month moved to drop the case after “a considered review of all the facts and circumstances.”

Justice Department officials said Mr. Flynn’s FBI interview was “untethered to and unjustified” because it was conducted “without any legitimate basis.” The Department also said Mr. Flynn’s lies were “not material” to the broader Russia-collusion probe.

The surprise end to the prosecution came after the FBI unsealed notes raising questions about whether Mr. Flynn had been set up. One top FBI official questioned whether the goal of interviewing Mr. Flynn was to get him to lie so he could be prosecuted or fired.

Another internal FBI document revealed that the bureau was set to close the case after failing to uncover any wrongdoing, but Mr. Strzok, who had been sharply critical of Mr. Trump in a series of texts with his extramarital paramour, pushed to keep it open after discussing the case with bureau leadership.

One of the top president’s top Senate allies, Judiciary Committee Chairman Lindsey Graham, South Carolina Republican, also praised the decision, noting the Flynn saga had dragged on for almost three years before the case ended.

“Justice. Finally Justice,” Mr. Graham said. “Justice delayed is better than no justice.”

• Jeff Mordock can be reached at jmordock@washingtontimes.com.

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