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Never-Ending Story? US Lawyer Weighs Up Chances of Flynn's Case Being Reheard Before Full DC Circuit

© AP Photo / Patrick SemanskyMichael Flynn, President Donald Trump's former national security adviser, departs a federal courthouse after a hearing, Monday, June 24, 2019, in Washington.
Michael Flynn, President Donald Trump's former national security adviser, departs a federal courthouse after a hearing, Monday, June 24, 2019, in Washington. - Sputnik International
On 24 June, the DC Circuit Court of Appeals ruled that District Judge Emmet Sullivan should accept the Justice Department's motion to dismiss the criminal case against former National Security Adviser Michael Flynn. US Professor of Law Patrick Borchers has explained whether the order immediately puts an end to the much-discussed case.

Although the DOJ's motion to throw the case out was released on 7 May, Judge Sullivan paused resolving the case and appointed retired New York Federal Judge and former prosecutor John Gleeson to argue against the DOJ's move and examine whether Flynn committed perjury by pleading guilty to lying to FBI agents in January 2017 and then rescinding the plea. However, Sullivan's ruling prompted a heated debate over the limits of juridical power and added fuel to the flames of the highly politicised case.

Patrick Borchers, Lillis Family professor of law at Creighton University in Nebraska, has explained the latest twist in Flynn's legal saga and how newly obtained documents apparently exposing ex-Vice President Joe Biden's role in Flynn's case may affect the Democratic presumptive candidate's election bid.

Sputnik: What's your take on the decision by the DC Circuit Court of Appeals to overrule District Judge Emmet Sullivan and order him to accept the Justice Department’s motion? Some media outlets are calling it a "surprise" move, would you agree with this assessment?

Patrick Borchers: I am not the least bit surprised that the government was ultimately allowed to dismiss the charges against Flynn. In an earlier interview, I stated that there was little chance that the government would not be allowed to do so. Judicial refusal to allow dismissal — even after sentencing — is limited to truly outrageous facts. If, for example, there were evidence that the defendant bribed the prosecutors or that it had four defendants charged with the same crime — two white and two black — and decided to dismiss the cases against the whites but not the blacks, that would call for court intervention. However, there was nothing like that in this case. The retired judge and former federal prosecutor who was appointed by the District Court to review the decision to dismiss the charges was highly critical of the decision, but he didn’t raise the possibility of any irregularities of that magnitude.

The reason that some are calling the decision a surprise has to do with when it was made, not the ultimate outcome. The DC Circuit panel (the appellate court) issued a “writ of mandamus”. While that term doesn’t mean much to non-lawyers, to lawyers it is recognised as an extraordinary remedy. It requires a gross abuse of authority by the District Court and no way to remedy it later.

The dissenting judge argued with some force that there was no harm in waiting for the District Court to rule on the motion to dismiss the charges and then allowing an appeal if the District Court denied the motion. It seemed from the questions posed at oral argument before the DC Circuit panel that at least two of the judges were leaning toward letting the District Court rule on the motion and then consider the matter on appeal if necessary. That’s the aspect of the case that caught some off guard. But I think the DC Circuit panel had its mind made up and decided that there was no point in delaying the inevitable.

I have seen some commentators speculating that the full DC Circuit (12 judges) might choose to re-hear the case. I think that’s less than a 10 percent possibility. I think most judges will view it as a very unusual case and will not wish to revisit it.

Sputnik: New notes handed over to the Flynn defence team apparently show that then-FBI Director James Comey saw Flynn's calls with Russian Ambassador Sergei Kislyak as "legit". However, it appears that then-President Barack Obama and then-Vice President Joe Biden pushed for an investigation into Flynn, with Biden allegedly proposing to use the Logan Act against the general. Biden has repeatedly flip-flopped on whether he knew about the probe against Flynn. What do you think about this development? If the Flynn team’s interpretation of the notes is correct, how would you explain Obama and Biden's determination to investigate Trump’s former national security adviser?

Patrick Borchers: The notes are cryptic. Flynn’s contact with the Russian ambassador was certainly unusual for someone who did not yet have a government post, though potentially legitimate given that he was about to become the national security adviser. The attribution of a reference to the Logan Act by Biden is interesting, but possibly innocuous.

​The Logan Act was signed into law by President John Adams (the second president of the United States) to forbid private parties from attempting to negotiate with a foreign government with which the US is having a dispute and thereby undercutting the US’s position. It is named for George Logan, who attempted to negotiate with the French government in 1798 over a dispute between the US and France, even though Adams had sent three envoys to negotiate with France. There has never been a conviction under the Logan Act and almost certainly Flynn was not violating the Logan Act.

It would be more troubling if the US government had attempted to prosecute Flynn under the Logan Act, but there was no such prosecution. Presidential transitions, especially when the incoming president is from a different political party than the incumbent, are complicated. Foreign governments are understandably anxious to form a relationship with the incoming leadership knowing that they will be in power for at least four years.

Sputnik: Could the newly uncovered documents have any impact on Biden's election campaign?

Patrick Borchers: I will be surprised if there is any significant impact on Biden’s campaign or Trump’s campaign absent significant new revelations. For one thing, the Flynn prosecution and dismissal are tied in with the Mueller probe, a matter that has faded well into the background for most voters given the COVID-19 virus, the spike in unemployment, and racial tensions.

Given that Flynn served such a brief time in office, most voters likely couldn’t tell you much about his role or the prosecution. Attempting to tie Biden to the prosecution that’s at best a hazy memory for most voters[, it] likely won’t make much difference unless there’s very clear evidence of serious wrongdoing by Biden.

There are also political dangers for Trump. Politically, Trump won the Mueller probe and impeachment issue.  Bringing back up the Mueller probe carries with it some risk of reminding people that the report was ambivalent about the conduct of the Trump campaign. But, as I said, most voters are well past that.

Trump’s re-election chances realistically stand or fall with the economy. If the virus is under control to the point where economic activity rebounds, his chances of getting re-elected are much better. If the virus surges — as it appears to be in the American southwest — forcing states to issue new “stay at home” orders or take other drastic steps, then unemployment will begin to climb again and his chances of getting re-elected will be low.

Trump’s position reminds me some of George H.W. Bush, who served as president from 1989-1993. Bush was very popular when the US was part of a coalition that pushed Hussein’s troops out of Kuwait. His re-election looked nearly inevitable. However, there was a short but deep recession in 1991-92, and Bush was beaten easily by Bill Clinton. As Bill Clinton used to say to himself “it’s the economy, stupid".

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