Can Michael Flynn sue for malicious prosecution?
Notes from Peter Stzrok show Obama and Biden weighed in on Flynn case as Comey appeared to downplay the former national security adviser’s calls with the Russian ambassador; former U.S. Attorney Brett Tolman reacts.
Michael Flynn, after fighting for years against a false-statements charge stemming from the Russia probe, could be poised not only to lift his legal cloud but make a return to the campaign trail on behalf of President Trump.
Whether and how Flynn might do so remains unclear at this point. But Trump allies reportedly are pushing for it, and a campaign role of some kind would be familiar territory for the retired lieutenant general. Flynn had a regular presence on the campaign trail on behalf of Trump in 2016 before his brief and ill-fated stint as national security adviser.
Flynn resigned from his post in February 2017—just weeks into the administration—after he was accused of misleading Vice President Pence and other senior White House officials about his communications with former Russian ambassador Sergey Kislyak.
Flynn was charged with making false statements in his January 2017 interview with the FBI as part of former Special Counsel Robert Mueller’s probe. The Justice Department has since sought for the charges to be dropped completely, though the case remains in limbo as a federal judge resists the dismissal for now.
Trump allies, though, are pushing for Flynn to enter the 2020 political fray.
“Great surrogate—lots of people would come to see him,” former House Speaker New Gingrich told Politico. “He’s the perfect example of deep state victimization. Pretty powerful.”
Trump campaign Communications Director Tim Murtaugh told Fox News that Flynn’s involvement is “an interesting idea.”
“Gen. Flynn is a great American,” Murtaugh told Fox News.
Another campaign official told Fox News that Flynn could appear on the campaign trail for the president, though no plans have been made.
Politico reported Monday that Flynn could be welcomed back in a surrogate role or as an opener for Trump’s campaign rallies, presuming coronavirus precautions allow them to go forward.
Flynn, though, is awaiting a final ruling from the D.C. Circuit Court of Appeals, after D.C. District Judge Emmet Sullivan refused to swiftly dismiss the criminal case against him.
A D.C. Circuit Court of Appeals panel last month ordered Sullivan to dismiss the case against Flynn, but Sullivan has filed a petition for a so-called “en banc” review by the entire court, arguing that the three-judge panel was improperly trying to force the district court to “grant a motion [to dismiss] it had not yet resolved…in reliance on arguments never presented to the district court.”
Flynn's lawyer, Sidney Powell, successfully sought a writ of mandamus last month from the three-judge panel. Writs of mandamus are unusual remedies that order government officials to take a certain action.
Powell, whose argument was supported by the Justice Department, primarily asserted that the constitutional separation of powers, and D.C. Circuit case law, holds that judges cannot unilaterally keep prosecutions alive when both the prosecutors and the defense seek to dismiss charges. The DOJ moved to dismiss the Flynn case earlier this year after the disclosure of what allies viewed as exculpatory information, which the government acknowledged should have been disclosed long ago under a standing court order.
READ THE JUDGE'S PETITION FOR EN BANC REVIEW
But the circuit court's panel decision ordering the dismissal of the case, Sullivan argued, was premature, and threatened to turn "mandamus into an ordinary litigation tool.”
If en banc review is granted, an oral argument date would then be set, likely in the fall. If en banc review is denied, Sullivan could appeal to the Supreme Court — a process that could take months to resolve, past Election Day.
The Department of Justice has agreed with Powell's arguments, saying in court filings that Sullivan risked compromising the separation of powers between the executive and judicial branches.
Fox News' Gregg Re contributed to this report.
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