After Getting Appeals Court’s Okay, Flynn Judge Revives Look At DOJ’s Dismissal Bid

United States District Judge Emmet Sullivan of the United States District Court for the District of Columbia.
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September 1, 2020 1:57 p.m.

The judge presiding over Michael Flynn’s case took a next step towards examining the Justice Department’s request to dismiss Flynn’s case, now that an appeals court has reversed its order that the judge immediately drop the prosecution.

U.S. District Judge Emmet Sullivan told the parties on Tuesday to file by Sept. 21 a joint proposal for when to schedule a hearing on the department’s request to dismiss the case. Sullivan also wants their proposed schedule to include deadlines for the DOJ and Flynn to file their responses to a so-called “friend of the court” appointed by Sullivan, the retired U.S. District Judge John Gleeson. Gleeson is arguing against the dismissal of Flynn’s case and has alleged that the Justice Department engaged in a “gross abuse of prosecutorial power.”

Sullivan’s order noted that Sept. 21, according the court’s rules, is when Monday’s appeals court order will go into effect absent “an order or other special direction… to the contrary.”

Neither the Justice Department or Flynn have said what they’ll do next now that the appeals court has said it will not intervene in how Sullivan is currently handling the dismissal request.

The brouhaha started back in May, when the Justice Department shockingly indicated that it was dropping its prosecution of Flynn, who had already pleaded guilty in 2017 to lying to the FBI about his 2016 Russian contacts.

Rather than immediately grant the DOJ dismissal motion, Sullivan appointed Gleeson to serve as a “friend of the court” who would advise Sullivan on what next steps he could take. Sullivan also opened the floor for other parties to file so-called “friend of the court” (or “amicus”) briefs. The judge was set to hold a hearing in the matter in mid-July, but that was postponed when Flynn successfully sought the intervention of the U.S. Court of Appeals for the D.C. Circuit. A panel of appellate judges from that court sided with Flynn — who was supported by the Justice Department — and said that Sullivan must immediately drop Flynn’s case. However the full  appeals court reheard the dispute and ruled Monday that, for now, Sullivan could continue his review of the DOJ dismissal request.

The extraordinary appellate proceedings raised critical questions of whether the judicial branch was obligated to go along with a Justice Department request to drop a case — and particularly a case where the defendant previously pleaded guilty — for allegedly improper motives.

At the appeals court hearing, Sullivan’s lawyer played down the possibility that he’d do an extensive probe into the DOJ’s motives before deciding the motion.

Read his Tuesday order below:

MINUTE ORDER as to MICHAEL T. FLYNN. In light of the Opinion and Order issued by the Court of Appeals on August 31, 2020 and Circuit Rule 41(a)(3), which states that an order denying mandamus relief “will become effective automatically 21 days after issuance in the absence of an order or other special direction… to the contrary,” the parties are directed to file a joint status report with a recommendation for further proceedings by no later than September 21, 2020. The parties’ joint status report shall propose a briefing schedule regarding the deadlines for (1) the government and Mr. Flynn to file any sur-reply briefs; and (2) the government, Mr. Flynn, and the Court-appointed amicus curiae to file a consolidated response to any amicus brief of non-Court-appointed amicus curiae. It is FURTHER ORDERED that the parties shall propose three dates and times to hold oral argument. If the parties are unable to agree on a joint recommendation, the joint status report shall include each party’s individual recommendations. Signed by Judge Emmet G. Sullivan on 9/1/2020.

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