The Michael Flynn case continues to be a source of unusual and remarkable developments.
In the days since the Justice Department asked Flynn’s judge to drop the case — an extremely controversial move that signaled that the department had succumbed to President Trump’s pressure to lay off his allies — mystery has surrounded what the judge will do in response.
U.S. District Judge Emmet Sullivan’s next moves are still not entirely clear. But so far, he’s not acting quickly to grant the dismissal that the Justice Department and Flynn are seeking. And he’s suggested that he’s willing to provide a forum for outside parties to debate what authorities he has to hold on to the case for a least a little while longer.
Such a debate touches on fundamental questions about the separation of powers and the politicization of the Justice Department. Already, some former Watergate prosecutors are planning to argue that the judge doesn’t have to take the DOJ, in its stated reasons for dropping the case, at its word.
Sullivan first broke his silence Tuesday afternoon, to issue a cryptic order suggesting that he’d consider the opinions of outside parties on what he should do next. The acceptance of these “friend-of-the-court” briefs (also known as amicus briefs) is highly unusual in a criminal case. It’s a practice generally reserved for civil litigation. But as Sullivan’s order noted Wednesday, there is some precedent for amicus briefing in criminal cases, as well.
Why Sullivan issued the eyebrow-raising order became clearer a few hours later Tuesday evening.
A filing from Flynn’s attorneys hit the docket expressing opposition to the submission of friend-the-court briefs in his case, as they asked for Sullivan to dismiss the case “immediately” because “no further delay should be tolerated.”
The Flynn filing revealed that a group of former Watergate prosecutors had sought to file such a brief on Monday.
The ex-prosecutors, according to a version of their filing made public late Tuesday night, wanted to argue to the judge that he has broad authority to probe the circumstances of the DOJ’s reversal in the case.
“There are at least substantial questions as to whether factual representations in the Motion are accurate and whether the Motion is made in good faith and consistent with the public interest,” the ex-prosecutors said, referring to the DOJ motion to dismiss the case.
In another draft filing obtained by TPM, the ex-prosecutors compared the current situation to the “Saturday Night Massacre,” i.e. the firing of the special prosecutor in the Watergate investigation.
“Here, where the Motion seeks to reverse a prosecutorial judgment previously entrusted to and made by Special Counsel, Robert Mueller, the value the Watergate Prosecutors’ unique perspective on the need for independent scrutiny and oversight to ensure that crucial decisions about prosecutions of high-ranking government officials are made in the public interest, are viewed as legitimate, and are not subsequently reversed by political intervention,” the ex-prosecutors said.
In his filing Tuesday evening, Flynn told the judge to reject the amicus brief, as he had rejected proposed amicus briefs previously in the case.
But it seems that the DOJ’s recent handling of the case has Sullivan now opening the door to hearing the opinions certain amici. His order on Tuesday said that “at the appropriate time” he’d be laying out a schedule for the filing of amicus briefs — a point he reiterated Wednesday morning in a follow-up order denying the submission of the Watergate prosecutors brief, for now.
Nick Akerman, one of the Watergate prosecutors signed on to the proposed brief, told TPM that the effort to file as amicus came together in the last few days, and that the group of former prosecutors generally keep in touch regularly.
“It came together because so many of us were upset the Justice Department has become totally politicized and it is being used as an instrument of Trump to cover up the entire Russia investigation,” Akerman said.
Akerman called the Justice Department’s reasons for wanting to dismiss the case “bogus.” He said that, because Flynn had twice in court submitted a guilty plea, and because the judge had already found that the evidence in the case backed the plea, it was within Sullivan’s authority not to grant the dismissal.
“He has every right to sentence Flynn,” Akerman said.
Just because Sullivan is considering letting Akerman and his colleagues formally weigh in doesn’t mean he’ll ultimately take their advice. But it appears we’re at least in for a few more twists in the Flynn case before everything is over.
Read the draft filings by the Watergate prosecutors, as well as Flynn’s opposition to the filings, below: