When the Department of Justice moved to dismiss the case against Michael Flynn, I wrote that the change put Judge Emmet Sullivan in an awkward position. Sullivan had all but accused the former national security adviser of treason at one point during the case, and issued a barely veiled threat to force Flynn to keep working with prosecutors, even though the DoJ had already proclaimed themselves satisfied with his cooperation. The sudden reversal by the DoJ has lots of potential to embarrass Sullivan as people examine this case in the future.
Therefore, how surprising is it that Sullivan might want to collect some bon mots to put on the record on his own behalf?
A federal judge overseeing the criminal case of President Trump’s former national security adviser Michael T. Flynn opened the door late Tuesday for legal experts and other outside parties to oppose the Justice Department’s motion to drop the case, suggesting he has at least some skepticism about the government’s argument that Mr. Flynn should never have been charged.
In a brief order, Judge Emmet G. Sullivan of the United States District Court for the District of Columbia said he would set a schedule for outside parties to present arguments about the government’s request to dismiss the case. He did not directly address the Justice Department’s motion to drop the charge, but legal experts said he appeared open to considering not only the department’s arguments but also those who have challenged its move as politically motivated.
This is, at the very least, quite curious in a criminal prosecution at the district-court level. Amicus briefs usually don’t apply to criminal trials, although technically the Flynn case is at the sentencing phase, where other testimony might be heard on mitigation or punishment. A dismissal motion by prosecutors, however, amounts to a forfeit by the only entity with authority to pursue a case. Sullivan might not like it, but how does he sustain a prosecution without the prosecuting authority’s cooperation, regardless of how many amicus briefs might cross his threshold? Judges in the American legal system don’t have that authority, which explicitly resides in the executive branch.
Flynn’s defense filed its own brief reminding Sullivan that not only is a prosecution without prosecutors an absurdity, Sullivan has a track record of refusing amicus briefs in the Flynn case until now:
Mr. Flynn’s legal team immediately objected to Judge Sullivan’s decision. The lawyers were likely worried that the judge was inviting a wide-ranging, public discussion of whether the Justice Department was inventing legal arguments in order to help one of the president’s allies, legal experts said.
“This court has consistently — on twenty-four (24) previous occasions — summarily refused to permit any third party to inject themselves or their views into this case,” the defense said in a motion filed after the judge’s order. “Only the Department of Justice and the defense can be heard.”
If Sullivan truly wants outside opinions on this issue, Flynn’s legal team advised Sullivan to renew his subscription to the Washington Post:
The defense also sought to play down the potential contributions of outsiders. “Former prosecutors are all free to submit opinion pieces to assorted media outlets — as many have already done — but this court is not a forum for their alleged special interest,” Mr. Flynn’s lawyers wrote.
The DoJ also weighed in on this topic in its motion to dismiss, Paul Mirengoff points out at Power Line. “[D]ecisions to dismiss pending charges “lie squarely within the ken of prosecutorial discretion”,” they wrote, “and “at the core of the Executive’s duty to see to the faithful execution of the laws.”” The technicality here is that Sullivan could argue that the charges stopped being “pending” when Flynn pled guilty, and that withdrawing from the sentencing doesn’t impact the conclusion of guilt from the plea.
Good luck getting that one past the appellate court, but Sullivan might not care. He may want vindication more than an enduring result, and these briefs might give him a stage for his own argument for such vindication. The Washington Post envisions Sullivan using the amicus process to hold a hearing that would essentially replace the trial phase that Flynn’s plea short circuited. Only this time, it would have two defendants in the dock — Flynn and William Barr.
That has some potential for backfiring, even if Sullivan doesn’t see it at the moment:
Sullivan’s invitation could set the stage for adversarial proceedings in which one or more attorneys argue against the Justice Department. It would also permit, if the judge chooses, to require sides to produce evidence and revisit the case for and against Flynn.
In an evidentiary hearing, Sullivan could call witnesses, such as Flynn, his investigators or even prosecutors, to obtain more facts about how the case was handled and why Flynn and agents took the steps they did.
Just how many of the people involved in the Flynn case will want to testify under oath? Given everything that Jeffrey Jensen dug up, Sullivan had better expect them to take the Fifth if called to the stand, which is going to put even more egg on Sullivan’s face in the end. Or — and this is a possibility — perhaps that’s precisely what Sullivan wants out of the process. If he humiliates the FBI and the Mueller team that misrepresented the case in his court, then that would give Sullivan a chance to turn the tables and ream them out for a while.
Good luck on getting the appellate court to allow that circus to come to town, too.
Either way, it’s exceedingly strange. Flynn’s team will likely appeal this decision, and the DoJ might too. However, our Red State colleague Shipwreckedcrew — himself a former Assistant US Attorney — thinks this could be nothing more than a limiting strategy to deal with an avalanche of amicus briefs that would have arrived anyway:
Not sure yet there is anything nefarious in Sullivan opening up filing to AC briefs. He's going to get them. If he sets parameters and a time frame, then he can limit how many, and then cut them off. They may come in by the dozens.
— shipwreckedcrew (@shipwreckedcrew) May 12, 2020
He also believes that Sullivan committed reversible error in accepting Flynn’s guilty plea in the first place. That means he’d likely have been reversed anyway, so perhaps this is Sullivan’s way of distancing himself from the error. Be sure to read more of his detailed and intriguing argument.