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(CNN)A divided federal appeals court on Wednesday ordered the
dismissal of the case against former Trump national security
adviser Michael Flynn, likely concluding a long-running court
fight that had taken on greater meaning in political debates
about the Russia investigation into the 2016 Trump campaign and
about the checks and balances the judiciary has on the executive
branch.

Despite Flynn twice pleading guilty for lying to the FBI about
his conversations with then-Russian Ambassador Sergey Kislyak
during the presidential transition, the Justice Department moved
last month to dismiss the case against him. Trial judge Emmet
Sullivan of the DC District did not immediately act, instead
saying he wanted to weigh the department's arguments into at
least July.

If unchallenged with further appeals, the appeals court's ruling
exonerates Flynn after he sought to change his plea and claimed
innocence.

Flynn's case has become a touchstone for President Donald Trump
and his supporters in their criticism of the FBI's Russia
investigation and special counsel Robert Mueller's criminal
prosecution of several Trump campaign associates. Even after the
appeals decision, Trump and his supporters continued to attack
the investigation, especially as it relates to Flynn. Flynn's
team made public a handwritten note on Wednesday that
highlighted then-Vice President Joe Biden's comments on Flynn in
early January 2017 -- seeking to again delegitimize the Obama
administration's discussions of the investigation.

Trump weighed in on the ruling on Twitter Wednesday, calling it
"Great!" Later in the day, speaking in the Oval Office ahead of
a meeting with his Polish counterpart, Trump brought up Flynn
unprompted, claiming that his former national security adviser
had been "exonerated" and adding, "I want to congratulate him."
And Ohio Rep. Jim Jordan, the ranking Republican on the
Judiciary Committee, also touted the court's decision at a
hearing into Attorney General William Barr's decision-making
that began afternoon Wednesday.

A split three-judge panel on the DC Circuit Court of Appeals on
Wednesday decided Sullivan didn't have enough reason to question
the DOJ's prosecution decisions in this case. They also said
Sullivan having a third-party attorney weigh in on Flynn's case,
the former judge John Gleeson, isn't needed anymore.

Sullivan "fails to justify the district court's unprecedented
intrusions on individual liberty and the Executive's charging
authority," DC appeals court Judge Neomi Rao, a Trump appointee,
wrote in the majority opinion.

RELATED: Michael Flynn case is the latest test of separation of
powers during Trump years
Appeals court Judge Robert Wilkins disagreed with the decision
of Rao and Judge Karen Henderson to short circuit the Flynn case
in the trial court immediately. Wilkins wrote he supported
allowing Sullivan to hold a hearing about Flynn's dismissal
request on July 16.

Gleeson later asked the trial court for guidance on what happens
next, suggesting the case may stay alive for a few weeks.

An attorney representing Sullivan in the appeal declined to
comment.

It's possible the case could continue on in future appeals,
given how it is largely about the power of the judiciary, a
weighty subject in a case other appeals court judges may take
interest in. If Flynn's case were to stay alive following the
ruling Wednesday, it conceivably might not be resolved until
after the presidential election, or even next year, if it
becomes an issue before the Supreme Court.

Steve Vladeck, CNN legal analyst and professor at the University
of Texas School of Law, said on Wednesday the ruling may be
"short-lived."

"Whether or not Judge Sullivan wishes to pursue this further,
any of the 11 active judges on the DC Circuit, including Judge
Wilkins -- who dissented from today's ruling -- can ask the full
court to rehear the matter," Vladeck said. "It is virtually
unprecedented for an appeals court to step in at this juncture
and order a district judge to rule a particular way on a motion
he hasn't yet ruled on."

All three judges on the appeals court refused to reassign
Flynn's case to a different judge, as Flynn had hoped. Sullivan
has raised questions about whether Flynn should be held in
contempt of court for perjury.

The DOJ's handling of the dismissal in May -- including it being
filed by an acting political appointee without the endorsement
of career prosecutors on the case -- also prompted hundreds of
former national security professionals and federal prosecutors
to criticize Barr for making what they argued were political
rather than legally sound decisions on cases involving the
President's friends.

Rao wrote on Wednesday that even the unusual signatures on the
dismissal didn't give the courts enough reason to second guess
Barr.

"Each of our three coequal branches should be encouraged to self-
correct when it errs. 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," Rao wrote.

Flynn team attempts to tie Biden to his prosecution
Shortly after the ruling in his favor, Flynn's legal team made
public a new document in his case file that may contribute to
ongoing political discussions about the early Russia
investigation.

The filing is a handwritten note that would now have little
effect in his court case, but can be touted by conservatives
that have sought to tie Biden to the 2017 decision to
investigate Flynn. The Trump campaign has already seized on the
document to attack the former vice president, who has been
rising in the polls since becoming the presumptive Democratic
nominee.

The Justice Department had sent the note directly to Flynn's
team on Tuesday as part of a review of his case and while
keeping it under a court's protective order. That allowed
Flynn's team to make it public on Wednesday by adding it to his
case file as a "supplement."

While releasing the document, Flynn's lawyers also suggested
that President Barack Obama, Biden, then-FBI Director James
Comey and other Obama-era officials plotted against Flynn. These
accusation appear to be an attempt to reinforce the "Obamagate"
conspiracy theory that Trump has championed about anti-Trump
sabotage by Obama officials. There is essentially no evidence of
wrongdoing by these former officials, and in a sweeping ruling
last year, a judge in the case soundly rejected the allegations
that there was a "deep state" plot by Obama-era officials to
target Flynn.

The note appears to show an early January meeting where Biden,
Obama, Comey and others discussed Russian meddling in the recent
election and Flynn. The meeting has been known about for years,
and multiple participants testified to Congress that nothing
untoward happened regarding Flynn, but that they discussed his
controversial and alarming calls with a Russian official.

Flynn's team called it "stunning and exculpatory," though it
appears that they are leaning into their interpretation of the
scattered, handwritten page of notes, which doesn't prove any
wrongdoing on its own.

Flynn's lawyers say the notes from then-FBI agent Peter Strzok
showed that the Obama administration's leadership discussed
whether Flynn's transition-time call with Kislyak was
legitimate. The handwritten note attributes the phrase "Logan
Act" to the "VP," or Biden. But it's not at all clear what the
context of that apparent reference was. The Logan Act regulates non-governmental negotiations with foreign governments.

The Trump-era Justice Department, after prosecuting Flynn for
covering up his policy asks of Kislyak for more than two years,
has questioned whether Flynn should have been investigated for a
Logan Act violation because prosecuting a crime under the act
was unlikely. The DOJ decided this year it wanted to drop the
case against Flynn.

Even if Flynn's case is dismissed immediately, as an appeals
court ordered, this latest filing is likely to fuel conservative
commentary and theorizing about the early Russia investigation
at a crucial time during Trump's reelection campaign against
Biden. Trump and Barr have tried to undercut the Russia
investigation, questioning its purpose, dialing back criminal
cases brought by Mueller and continuing to revisit its details.

In late April, Trump, Flynn's legal team and conservative allies
seized on the disclosure of a hand-written note from a top FBI
official outlining how agents may either refer Flynn for
prosecution for illegally negotiating with a foreign government
or "get him to lie" or "get him fired." Trump used the document
to argue that Flynn should be "exonerated" and that the charges
should be dropped. He also suggested that he's considering a
full pardon for Flynn.

This story has been updated with additional information.

CNN's Veronica Stracqualursi and Kevin Liptak contributed to
this report.

https://www.cnn.com/2020/06/24/politics/michael-flynn-
dismiss/index.html
 

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