Sullivan should take cue from appeals court ruling

Why did a federal appeals court order the dismissal of the criminal case against Michael Flynn? Because it followed the law, says a constitutional attorney. 

In a 2-1 ruling announced Wednesday, the U.S. Circuit Court of Appeals for the District of Columbia said the Justice Department's decision to abandon the case against Flynn settles the matter.

Flynn, who was a national security advisor for President Trump, has pleaded guilty to lying to prosecutors in special counsel Robert Mueller's Russia investigation. But a fiery new attorney, Sidney Powell (pictured below with Flynn), fought back against the DOJ on behalf of her client and claimed Flynn was the victim of an underhanded “Deep State” operation to peel off a member of Trump’s inner circle.

According to government documents handed over to Powell, senior FBI officials set a trap and openly discussed getting Flynn to lie to them, a federal offense. Once Flynn was accused of lying, one official asked if their goal was to get Flynn fired or to prosecute him.

Faced with the FBI's now-public tactics, the Justice Department announced it was dropping the case against Flynn. That decision angered the presiding judge, Emmet Sullivan, who had called Flynn a "traitor" in court, and he refused to allow it and pushed ahead with prosecuting Flynn.

"The short way of looking at this is the court of appeals followed the law," insists Hans von Spakovsky, senior legal fellow for The Heritage Foundation. "That is something that Judge Sullivan didn't do."

Undeterred by the DOJ’s reversal, Sullivan appointed a retired federal judge to argue against the Justice Department's position and to consider whether Flynn could be held in criminal contempt for perjury.

Judge Sullivan also set a July 16 hearing to formally hear the request to dismiss the case.

Spakovsky, who has worked at the Department of Justice, says the decision whether to prosecute somebody is exclusively within the power of the executive branch.

"Judges can't do that in this country,” he tells OneNewsNow, “and for Judge Sullivan to, in essence, refuse to accept the dismissal of the prosecution and to hire an outside lawyer, and to file an amicus brief and argue the case was, as the court said, clear legal error. They are absolutely right."

Appeals Court Judge Neomi Rao, a Trump appointee, was a deciding factor in Wednesday's ruling but Spakovsky dismisses any suggestion she is biased. That label belongs on Sullivan, he says.