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Appeals court to decide whether to send Michael Flynn dismissal back to lower court

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The appeals court held a nearly four-hour hearing over a lower court’s refusal to immediately grant the Justice Department’s request to dismiss criminal charges against the former national security adviser.
Judges on the full D. C. Circuit Court of Appeals intimated Tuesday that they’re hesitant to force a lower court judge to dismiss the criminal charges against former national security adviser Michael Flynn. The nearly four-hour hearing conducted by teleconference before 10 circuit court judges challenged arguments brought by Flynn’s attorney and the government that District Court Judge, Emmet Sullivan, had acted outside his constitutional authority by not immediately granting the Justice Department’s request to dismiss the charges against Flynn. The appeals court will also review whether or not Sullivan should be removed from the case because of what Flynn’s team deems « glaring bias. » The government and Flynn’s attorney argued that the executive branch should be able to make prosecutorial decisions without being second-guessed by the judicial branch. But several jurists asked why courts should not have any authority to examine the government’s reasons for dismissing charges, as Sullivan wishes to do in this case. Acting Solicitor General Jeffrey Wall argued that under separation of powers, discretion belongs solely to the executive branch, and that a « court cannot keep a prosecution alive. » During arguments, Wall revealed that Attorney General William Barr, who ultimately made the decision to drop the criminal case against Flynn, may have more non-public information at his disposal than was made available in the earlier filing to dismiss the case. « I just wanted to make clear that it may be possible that the Attorney General had before him information that he was not able to share with the court, » Wall explained.

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