President Donald Trump early Tuesday tweeted a comment made by Fox News' judicial analyst Judge Andrew Napolitano, who said that in his opinion, former national security adviser Michael Flynn should never have been prosecuted.
“'In my view General Flynn should never have been prosecuted in the first place.' @Judgenap Judge Andrew Napolitano @foxandfriends," Trump tweeted, shortly after Napolitano's appearance.
On "Fox and Friends," Napolitano discussed the news that attorneys for Flynn and the Trump administration had pushed for a full federal appeals court in Washington not to rehear Flynn's case.
The Washington Post reports the attorneys are arguing that an earlier order requiring Flynn's prosecution to be dismissed should stand. Flynn's defense, in a 19-page filing, also criticized U.S. District Judge Emmet Sullivan for seeking a hearing to determine if the Justice Department's request to remove Flynn's guilty plea of lying to the FBI is in the best interest of the public.
"This is a very, very unusual case," said Napolitano. "No one could have predicted the twists and turns. In my view, Gen. Flynn should have never been prosecuted in the first place for a lot of reasons."
For one, the FBI "already knew what he said," according to Napolitano. In addition, there was "substantial" FBI misconduct in Flynn's case.
"So the Justice Department says let's get rid of the case," said Napolitano. "[Sullivan] says let me think about getting rid of the case. While is he thinking about getting rid of the case, Gen. Flynn's lawyers go to the appeals court and say order him to get rid of the case. So a three-judge panel, two vs. one, ordered Judge Sullivan to do something before he had a chance to do it."
However, Sullivan has asked a full appeals court of 11 judges to allow him to further examine the case, and Napolitano said he thinks the court will rule in the judge's favor.
"My opinion is that the full federal appeals court, all 11, will reverse the panel that ordered Judge Sullivan to dismiss the case immediately and give him the opportunity to look at the case, look at the facts and decide what to do," said Napolitano. "Because if that's not the case, then the appeals court is effectively becoming the trial court by telling him how to rule before he has a chance to do it."
Meanwhile, Flynn's guilty plea makes the situation even more tricky, said Napolitano, because once he made the plea under oath, "he sort of got himself into a box."
Sandy Fitzgerald ✉
Sandy Fitzgerald has more than three decades in journalism and serves as a general assignment writer for Newsmax covering news, media, and politics.
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