An Early Glimpse Of The Legal Battle Over DOJ Suddenly Going Soft On Mike Flynn

WASHINGTON, DC - JUNE 24: Former Trump national security advisor Michael Flynn leaves the E. Barrett Prettyman U.S. Courthouse on June 24, 2019 in Washington, DC. Flynn is expected to testify again on July 15. (Photo by Alex Wroblewski/Getty Images)
WASHINGTON, DC - JUNE 24: President Donald Trump’s former National Security Adviser Michael Flynn leaves the E. Barrett Prettyman U.S. Courthouse on June 24, 2019 in Washington, DC. Criminal sentencing for Flynn wi... WASHINGTON, DC - JUNE 24: President Donald Trump’s former National Security Adviser Michael Flynn leaves the E. Barrett Prettyman U.S. Courthouse on June 24, 2019 in Washington, DC. Criminal sentencing for Flynn will be on hold for at least another two months. (Photo by Alex Wroblewski/Getty Images) MORE LESS
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May 22, 2020 4:35 p.m.

The battle lines are beginning to take shape in the extraordinary fight over what should come next in Michael Flynn’s case.

Flynn’s judge has held off on granting the Justice Department’s request to drop the case, prompting Flynn’s attorneys to go to an appeals court for an intervention.

Now two competing groups of outsiders want to offer the appeals court their own takes on what Flynn’s judge should and shouldn’t do at this point in time.

The increasingly messy and convoluted situation is the result of the Justice Department’s drastic reversal in the case. The reversal came after the Justice Department spent months rebutting Flynn’s allegations of prosecutorial misconduct and defending the plea deal special counsel Robert Mueller entered into with him in December 2017.

In an unprecedented move, the Justice Department earlier this month asked Flynn’s judge, U.S. District Judge Emmet Sullivan, to dismiss its prosecution of Flynn. It claimed it had found new evidence that suggested Flynn shouldn’t have been prosecuted.

Usually such requests are granted expeditiously and without drama.

But given the remarkable way Flynn’s case has unfolded — which included Flynn in December 2018 reaffirming his guilty plea to Sullivan under oath — Sullivan isn’t granting the DOJ request just yet. Instead, he’s asked a former judge and ex-mafia prosecutor to file “friend-of-the-court” briefs opposing the DOJ dismissal request.

Flynn’s lawyers have brought their issues with Sullivan’s approach to the U.S. Court of Appeals for the D.C. Circuit, which on Thursday ordered Sullivan to respond to Flynn’s request that the appeals court get involved.

On Friday, a group of red states and a collection of former Watergate prosecutors each asked the appeals court if they could file their own “friend of the court” takes on whether Sullivan is handling the case appropriately.

The red states say he’s not, accusing him of “assuming the role of a prosecutor” in a way that “evinces a total lack of regard for the role that the separation of powers plays in our system.”

The former Watergate prosecutors, meanwhile, argued that it’s the Justice Department that should be viewed skeptically, given the “several mischaracterizations of the
relevant facts and the governing law” in its request that Flynn’s case be dropped.

They stressed that since Justice Department is trying to get the case dismissed after the court had already accepted the plea, Sullivan has “substantial discretion” in how it handles the request that the case be dropped.

The appeals court, which is made up of two GOP-appointees and a Dem-appointee, hasn’t said yet whether it will consider the views of the two groups. It’s asked Sullivan to file his response to Flynn’s petition by the week after next.

Read the two briefs offered by the outside groups below:

Correction: A previous version of this story incorrectly said that the Justice Department sought to dismiss Flynn’s case late last month. The request was filed on May 7.

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