Judge invites outside parties to weigh in on Flynn case, delaying DOJ effort to drop charges

by Harper Neidig - 05/12/20 6:22 PM ET

A federal judge said Tuesday that he would allow interested parties to weigh in on Michael Flynn’s case, delaying the Department of Justice (DOJ) effort to drop the charges against the former national security adviser.

In an unusual move for a criminal prosecution, Judge Emmet Sullivan of the D.C. District Court said in a brief order that “at the appropriate time, the Court will enter a Scheduling Order governing the submission of any amicus curiae briefs.”

Flynn’s lawyers moved to oppose the move Tuesday night, arguing that it would be inappropriate to allow third parties to weigh in on the prosecution.

“It is no accident that amicus briefs are excluded in criminal cases,” Flynn’s lawyers wrote in a filing. “A criminal case is a dispute between the United States and a criminal defendant. There is no place for third parties to meddle in the dispute, and certainly not to usurp the role of the government’s counsel. For the Court to allow another to stand in the place of the government would be a violation of the separation of powers.”

The case was upended last week when the DOJ moved to dismiss its charge against Flynn for lying to the FBI about his conversations with the Russian ambassador to the U.S. in 2016.

The lead prosecutor on the case, who had been overseeing it since Flynn first pleaded guilty to the charge in 2017, withdrew shortly before the motion was filed last Thursday.

It’s unusual for prosecutors to withdraw a case against a defendant who has already pleaded guilty. The move to allow amicus briefs offers critics of the DOJ’s decision an opportunity to weigh in.

Sullivan, a Clinton appointee, still needs to approve the DOJ’s motion to drop the charges. He has yet to schedule a hearing or ask for further briefing.

Critics have accused the department of intervening on behalf of one of President Trump’s allies and former advisers, and Sullivan’s decision to invite amicus filings will allow them to present legal arguments against approving the DOJ’s motion.

This week, Jonathan Kravis, a former career DOJ prosecutor who resigned after his sentencing recommendation for longtime Republican strategist Roger Stone was overruled by the administration, published an op-ed in The Washington Post calling the decision to drop Flynn’s charges “appalling.”

“In both cases, the department undercut the work of career employees to protect an ally of the president, an abdication of the commitment to equal justice under the law,” Kravis wrote. “Prosecutors must make decisions based on facts and law, not on the defendant’s political connections. When the department takes steps that it would never take in any other case to protect an ally of the president, it betrays this principle.”

Tags amicus brief Department of Justice Donald Trump Flynn case Michael Flynn Roger Stone