Given that the government and Flynn agree on dismissal of his case, Sullivan’s call for amicus briefs and Judge Gleeson’s involvement is not good news for Flynn. Sullivan no doubt wants to hear the other point of view—some 2,000 former DOJ officials have condemned Barr’s dismissal motion and urged his resignation—on the theory that the public interest and the interests of justice demand it. Flynn’s indictment came out of Special Counsel Robert Mueller’s office, after all, which was created precisely to avoid conflicts of interest with President Trump himself. Once Barr took over this case—as well as the matter of Roger Stone, in which he recently intervened over career prosecutors to recommend a last-minute sentence reduction—the entire purpose of having an independent prosecutor was undermined. Barr is biased in favor of his boss.
That said, Judge Sullivan will presumably allow briefs—and possibly testimony—in support of Flynn too, including expressions of the viewpoint that he was the victim of government misconduct. The judge will have to take care so that the proceedings don’t become a circus. But Sullivan is used to harshness of public scrutiny, having presided over the 2008 trial of Senator Ted Stevens, who was convicted of ethics violations but had his conviction dismissed after a DOJ probe found evidence of prosecutorial misconduct. Sullivan held four prosecutors in contempt and appointed a lawyer to investigate their actions. One of the accused DOJ lawyers committed suicide in the midst of the investigation.
If Trump’s allies are truly averse to “fake news” as they aver, Judge Sullivan’s friend-of-the-court maneuver should hardly spook them.