Flynn Judge Won’t Let Trump’s DOJ Drop Case Without Input
The federal judge won’t immediately grant the government’s request to dismiss the case, saying he’s willing to hear from outsiders
(Bloomberg) -- The judge overseeing the prosecution of former national security adviser Michael Flynn won’t immediately grant a U.S. request to dismiss the case, saying he’s willing to hear outsiders weigh in on what should happen next.
U.S. District Judge Emmet Sullivan in Washington will accept friend-of-the-court briefs in response to the dismissal request from Attorney General William Barr’s Justice Department, according to an order in the court docket on Tuesday. Flynn had pleaded guilty to lying to federal agents before deciding in January to try to withdraw his plea.
The judge’s unusual move is a potential setback to the Justice Department and President Donald Trump, who has repeatedly attacked the case, part of Special Counsel Robert Mueller’s probe into Russian interference in the 2016 election.
“Judge Sullivan could have ended this entire matter with a single word -- granted,” said Harry Sandick, a former federal prosecutor who isn’t involved in the case. “Instead, he seems open to the idea of hearing other voices about whether DOJ’s motion should be granted. This case is not over.”
In moving to dismiss its own case on Thursday, the U.S. said an internal review found that Flynn’s false statements to agents of the Federal Bureau of Investigation weren’t “material” to the Russia probe.
Flynn’s lawyer, Sidney Powell, said in a court filing shortly after the judge’s order on Tuesday that no briefs from outside parties should be accepted, noting that two dozen such requests had been denied during the three-year prosecution and urging Sullivan to sign off immediately on the motion to dismiss.
“A criminal case is a dispute between the United States and a criminal defendant,” Powell said in the filing. “There is no place for third parties to meddle in the dispute, and certainly not to usurp the role of the government’s counsel.”
In a statement this week, she said Flynn’s prosecutors should be held in contempt and “meaningful sanctions imposed” over their conduct, which she said included failing to hand over evidence to the defense.
Sullivan said in the order that he would set a schedule governing the submission of so-called amicus curiae briefs by people and organizations. He didn’t indicate when he’d start accepting the briefs or how long it might take for him to issue a decision. He suggested there may be some limits to which briefs he accepts, quoting the judge who oversaw the trial of Trump’s longtime backer Roger Stone.
“As Judge Amy Berman Jackson has observed, ‘while there may be individuals with an interest in this matter, a criminal proceeding is not a free for all,’” Sullivan wrote.
Coming on the heels of the Stone case, the Justice Department’s reversal renewed criticism that the department under Barr is making politically motivated calculations to benefit Trump.
On Monday, more than 2,000 former department officials who served in both Republican and Democratic administrations called for Barr to resign, saying his conduct was an assault on the rule of law. They urged the judge “to closely examine the department’s stated rationale for dismissing the charges -- including holding an evidentiary hearing with witnesses -- and to deny the motion and proceed with sentencing if appropriate.”
Former DOJ officials Mary McCord and Jonathan Kravis published opinion pieces -- McCord in the New York Times on Sunday, headlined “Bill Barr Twisted My Words in Dropping the Flynn Case,” and Kravis in the Washington Post on Monday, titled “I Left the Justice Department After It Made a Disastrous Mistake. It Just Happened Again.”
DOJ spokeswoman Kerri Kupec referred Tuesday to comments she made in an interview with Fox News. In the interview she said the department stands by the request to drop the case and will have to see what kind of schedule the judge sets.
The DOJ’s dismissal request had scathing words for the probe that swept up Flynn.
“The government cannot explain, much less prove to a jury beyond a reasonable doubt, how false statements are ‘material’ to an investigation that ... seems to have been undertaken only to elicit those very false statements and thereby criminalize Mr. Flynn,” U.S. Attorney Timothy Shea said in a brief.
If Sullivan, a Bill Clinton appointee, declines to dismiss the case, the U.S. would almost certainly appeal. The standard for a judge deciding whether to grant such a motion is “very deferential” to the Justice Department, though not automatic, according to Sandick and other legal experts.
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