Prosecutors, States Weigh In on Dismissal of Flynn Case

(Bloomberg) -- Sixteen former Watergate prosecutors urged a federal appeals court to deny an emergency request from Michael Flynn to toss out the criminal case against him for lying to federal agents. Meanwhile 16 states, including Ohio and Texas, said Flynn’s prosecution should be immediately dropped.

In a brief filed Friday, the group of prosecutors who served on the Justice Department’s Watergate task force said Judge Emmet Sullivan should be allowed to decide on the government’s request to dismiss the case. The state attorneys general supporting the dismissal request said in a separate filing that Sullivan is assuming the role of the prosecutor which “evinces a total lack of regard for the role that the separation of powers plays in our system.”

Flynn, President Donald Trump’s former national security adviser, asked the U.S. Court of Appeals in Washington to order Sullivan to grant the Justice Department’s May 7 request to drop the prosecution, which set off a partisan firestorm and may serve as a rallying cry for Republicans.

Sullivan hasn’t ruled on the Justice Department’s request but has appointed a former federal judge to argue against the dismissal and said he’d consider holding Flynn, who previously pleaded guilty, in criminal contempt for perjury.

U.S. law “requires district courts to exercise independent judgment when deciding a motion to dismiss federal charges,” the former prosecutors said. “Independent judgment is unquestionably informed by an adversary presentation in which not all parties are singing from the same hymnbook.”

Flynn’s lawyer, Sidney Powell, called the former prosecutors’ brief “politics at its worst -- infecting the Rule of Law.”

The states supporting the dismissal are Ohio, Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Louisiana, Mississippi, Missouri, Montana, Oklahoma, South Carolina, Texas, Utah and West Virginia. The attorneys general are all Republicans.

“The judiciary is supposed to function as a constitutional check on deprivations of liberty -- it is not supposed to remove constitutional checks on deprivations of liberty,” the states argued. “But that is exactly what the district court is doing by second-guessing the prosecutors’ decision not to continue pursuing this case.”

On Thursday, the appeals court ordered Sullivan to respond to Flynn’s petition to have his case thrown out immediately.

Flynn pleaded guilty twice to lying to FBI agents in a January 2017 interview about his conversations with the Russian ambassador during the early days of the bureau’s investigation into Russia’s election meddling. But under Attorney General William Barr, the Justice Department decided to walk away from the case after saying the agents did not have a proper investigative purpose in questioning Flynn and that his lies were not “material” to the Russia probe.

But the former prosecutors rejected that reasoning. “It defies comprehension to suggest that an incoming National Security Advisor, whom Russia knew to have misled both the Vice President and the Press Secretary about his conversations with the Russian Ambassador to the United States, should not have been interviewed by federal agents concerned about the possibility of potential Russian blackmail,” they said.

The Justice Department declined to comment on the brief filed by the former prosecutors

They include Richard Ben-Veniste, a member of the 9/11 Commission; Philip Lacovara, a former deputy U.S. solicitor general; Paul Michel, a former federal appeals court judge; and Jill Wine-Banks, who served as Army general counsel.

Flynn’s cause has been championed by Trump and many on the right, who have used it to suggest there was a conspiracy by former Obama administration officials to damage the president.

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