WASHINGTON – A federal judge is delaying an immediate decision on a Justice Department request to abandon the prosecution of former national security adviser Michael Flynn, saying that he will allow time for outside parties to challenge the government’s position.
U.S. District Judge Emmet Sullivan, in a Tuesday order, said he would set a schedule for parties to submit their challenges at a later date, injecting more drama into the case against the former Army general who first pleaded guilty to lying to the FBI in 2017 about his communications with then-Russian Ambassador Sergey Kislyak.
In the brief order, Sullivan did not address the Justice Department’s effort to drop the case, saying only that he “anticipates that individuals and organizations” will attempt to file arguments of their own.
“Accordingly, at the appropriate time, the Court will enter a scheduling order governing the submission of any amicus curiae briefs,” Sullivan said.
Flynn’s lawyers quickly responded, saying that outside parties had no standing in the case.
“A criminal case is a dispute between the United States and a criminal defendant,” Flynn’s lawyers argued in their own filing. “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.”
Describing the case as drawing “extraordinary national and international interest,” attorneys for Flynn said outside parties were “free to express their views” but there was no provision to join an ongoing criminal case.
The attorneys made repeated reference to a group of former prosecutors they dubbed “Watergate prosecutors” who sought to enter the case, but they asked the judge to deny them a forum. Justice’s decision has prompted a wave of protest, including from about 2,000 former department officials who have called for the ouster of Attorney General William Barr
“The ‘Watergate Prosecutors’ have no special role and no authority whatsoever to insert themselves in this litigation on behalf of anyone,” Flynn’s attorneys said. “They are no different than all those whose requests and attempts this court has quickly and resoundingly denied.”
Instead, Flynn’s lawyers appealed for the judge to follow the Justice Department’s recommendation.
“Moreover, this travesty of justice has already consumed three or more years of an innocent man’s life – and that of his entire family,” the attorneys argued. “No further delay should be tolerated or any further expense caused to him and his defense. This Court should enter the order proposed by the government immediately.”
Former federal prosecutors said Sullivan’s move is highly unusual and suggests the judge will take his time in deciding whether to dismiss the case against Flynn.
“Then again, I cannot remember another instance where a defendant pleaded guilty twice and then the DOJ moves to dismiss the case. Under no regime except Trump has anything like this occurred,” said Patrick Cotter, a former federal prosecutor. Cotter said he’s one of the signatories in a third-party brief that will be filed soon.
Sullivan’s decision also raises the likelihood that the Justice Department would be required to present evidence to support its motion to dismiss, Cotter said. The department also could appeal Sullivan’s order and force him to accept the motion.
Jonathan Turley, a constitutional law professor at George Washington University, said allowing third parties to weigh in “can certainly add more heat but not light.”
“More importantly, it is unlikely to change the outcome,” Turley said on Twitter. “This appears to confirm that he is unlikely to go quietly into the night with a ruling on the papers.”
Sullivan’s directive comes less than a week after the Justice Department set off a political firestorm by announcing its intention to drop the prosecution of the retired Army general.
Justice officials, in court documents filed Thursday, claimed that the FBI’s 2017 interview of the then-national security adviser was “unjustified” as they sought to learn about his communications with then-Ambassador Kislyak.
In that interview, Flynn lied when he told agents that he had not discussed sanctions imposed against Russia by the Obama administration. He subsequently pleaded guilty and agreed to cooperate with Russia special counsel Robert Mueller before reversing course early this year when he sought to withdraw his plea, asserting that he was duped by federal investigators.
“The government is not persuaded that the January 24, 2017 interview was conducted with a legitimate investigative basis and therefore does not believe Mr. Flynn’s statements were material even if untrue,” the Justice Department concluded. “Moreover, we do not believe that the government can prove either the relevant false statements or their materiality beyond a reasonable doubt.”
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The decision by the Justice Department flies in the face of a searing rebuke of Flynn by Sullivan, who oversaw an initial sentencing hearing in December 2018.
“Arguably, you sold your country out,” Sullivan said then. “I’m going to be frank with you. This is a very serious offense. It involves making false statements to the FBI on the premises of the White House – in the West Wing.”