A group of about a half-dozen Republican senators led by Majority Leader Mitch McConnell sided with the Justice Department and Michael Flynn Monday in their extraordinary beef with the judge handling Flynn’s case.
The senators sought to file a “friend of the court” brief Monday evening with the U.S. Court of Appeals for the D.C. Circuit that urged the court to intervene and order that Flynn’s case be dismissed.
Their move to jump into the fray was notable given the messiness of the current Flynn situation. In other instances, McConnell in particular has tried to sidestep controversies that have arisen from President Trump’s attempts to obstruct justice and the politicization of Trump’s Justice Department.
The current dispute in front of the appeals court centers on the U.S. District Judge Emmet Sullivan’s move to hold off on dismissing Flynn’s case and instead air out some of the concerns about the DOJ’s shocking reversal of its own prosecution. Despite having secured Flynn’s guilty plea – twice – the Justice Department wants to throw the case out.
In Monday’s filing, the Republican senators backed the executive branch’s “exclusive discretion to begin and to end a prosecution.”
They called for an “immediate appellate intervention” and warned of “grave consequences” if Sullivan was allowed to continue with his plan of having an outside party file briefs opposing the Justice Department request to drop the case. With Flynn and Justice Department now on the same side, it was no longer an adversarial proceeding, so Sullivan wanted someone to represent the opposing point of view in the case.
The GOP senators claimed Sullivan’s decision to delay the dismissal for the additional briefing was “inconsistent with the Constitution, the laws adopted by Congress, and the Federal Rules of Criminal Procedure.”
The filing offers almost no defense of Flynn’s underlying conduct. In December 2017, Flynn pleaded guilty to lying to the FBI about his Russian contacts in an early 2017 interview. But only in recent months has he tried to walk away from that plea. For several months the Justice Department continued to defends its prosecution of him, until its shocking reversal last month in seeking the case’s dismissal.
The only time the GOP senators addressed Flynn’s conduct head on was to argue that the fact that he “previously pled guilty and otherwise faces sentencing makes no difference” to whether the court is obligated to grant the dismissal request.
Likewise, the GOP senators did not get into the weeds of the Justice Department’s extraordinary backtracking in the case.
The senators who joined McConnell in filing the brief were Sens. Tom Cotton (R-AR), Mike Braun (R-IN), Kevin Cramer (R-ND), Ted Cruz (R-TX), Chuck Grassley (R-IA), and Rick Scott (R-FL).
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