It Doesn’t Sound Like Flynn’s Judge Is Done With His Case Just Yet

Former National Security Advisor General Michael Flynn arrives for his sentencing hearing at U.S. District Court in Washington, DC on December 18, 2018. (Photo credit: SAUL LOEB/AFP/Getty Images)
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May 12, 2020 6:45 p.m.

After days of silence, the federal judge overseeing Michael Flynn’s criminal case made his first public move since the Justice Department announced its controversial request to drop the prosecution.

U.S. District Judge Emmet Sullivan issued a lengthy, yet also cryptic, order Thursday that announced he would, “at an appropriate time,” lay out a schedule for him to consider friend-of-the-court briefs.

Typically, and as Sullivan’s ordered noted, friend-of-the-court briefs (also known as amicus briefs) are submitted by outside parties wishing to weigh in on civil cases, and the local rules for Sullivan’s court allow for such briefs. Such a move in a criminal case is unusual.

“There is no analogous rule in the Local Criminal Rules” Sullivan said. But then he quoted a local rule that said”[the Local Civil] Rules govern all proceedings in the United States District Court for the District of Columbia.”

“Although there is no corollary in the Local Criminal Rules to Local Civil Rule 7(o), a person or entity may seek leave of the Court to file an amicus curiae brief in a criminal case,” he later added.

His order cited other cases addressing the submission of friend-of-the-court briefs. One he quoted said amicus briefs can be allowed when a party has not been adequately represented, when there is another case that could be affected by the one before the judge, or when the amicus “has unique information or perspective that can help the court beyond the help that the lawyers for the parties are able to provide.

Sullivan appeared to caution that he wouldn’t let the friends of the court briefing turn into a zoo. His order quoted from U.S. District Judge Amy Berman Jackson when she denied a friend-of-court brief in Roger Stone’s case: “while there may be individuals with an interest in this matter, a criminal proceeding is not a free for all.” Perhaps coincidentally, the Stone case was another prosecution in which the Justice Department radically reversed course, prompting career prosecutors to withdraw.

It is unclear whether Sullivan publicly laid out this guidance because he anticipated outside parties would want to file amicus briefs, because he wanted to encourage the filing of amicus briefs or because someone had already tried to file an amicus brief. (CNN noted earlier Tuesday that there is a docket entry in the Flynn case for which the underlying filing has not been made public.)

But regardless, the order suggests that Sullivan is not going to be wrapping up the case up ASAP, as he intends to provide an opportunity for the filing of friend-of-the-court briefs.

Such briefing might not ultimately get in the way of the Justice Department’s move to drop Flynn’s case. But it would at least provide of forum for concerns about the DOJ’s reversal to be aired publicly before the judge.

See the full order below:

 

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