Gen. Michael Flynn, former national security adviser to US President Donald Trump, leaves Federal Court December 1, 2017 in Washington, DC.
Brendan Smialowski | AFP | Getty Images
The judge who has been asked by the Justice Department to dismiss its prosecution of ex-national security advisor Michael Flynn said Tuesday that he will first accept recommendations on whether he should do so from people and groups not involved in the case.
But Flynn’s lawyers promptly opposed Judge Emmet Sullivan’s unusual decision to consider third-party legal arguments, saying in a filing that court rules do not allow it.
Defense lawyers also argued that the judge had previously “summarily refused to permit any third party to inject themselves or their views into this case” 24 times and should do the same now.
The move by Sullivan to allow third-party comments offers a rare chance for critics of Flynn, who briefly served as one of President Donald Trump‘s top advisors, to possibly thwart the Justice Department’s controversial effort to dismiss the case.
That dismissal bid has outraged many former prosecutors and ex-Justice officials, who have noted that Flynn pleaded guilty to lying to FBI agents, and that he restated his guilt during another proceeding before the judge.
But Sullivan’s willingness to access the so-called amicus curiae, or friend-of-the-court briefs, also sets the stage for supporters of Flynn to lobby the judge to strongly accept the department’s recommendation, which was filed last Thursday.
“Given the current posture of this case, the Court anticipates that individuals and organizations will seek leave of the Court to file amicus curiae briefs,” Sullivan wrote in an order posted in U.S. District Court in Washington, D.C.
Sullivan wrote that he would set a schedule for friend-of-the-court submissions later.
But he cautioned, quoting the words of his colleague, Judge Amy Berman Jackson, that “while there may be individuals with an interest in this matter, a criminal proceeding is not a free-for-all.”
Sullivan’s order is the first time that the judge acted in the case since the Justice Department moved to dismiss the prosecution.
A group of former federal prosecutors calling themselves the “Watergate Prosecutors” is planning to file an amicus brief, according to the filing Tuesday evening by Flynn’s lawyer Sidney Powell and other defense attorneys.
Flynn’s attorneys argued in that filing that the Watergate Prosecutors group “has no special role and no authority whatsoever to insert themselves in this litigation on behalf of anyone.”
“This travesty of justice has already consumed three or more years of an innocent man’s life — and that of his entire family,” the defense attorneys wrote. “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.”
Powell, in an earlier filing Tuesday wrote that Flynn’s lawyers agreed with the Justice Department that “that the dismissal of this case meets the interests of justice and requests that this matter be dismissed immediately, with prejudice.”
Powell did not immediately respond to a request for comment from CNBC.
The Justice Department’s request to dismiss the case came after it concluded that it had a duty to drop the charges after finding that the FBI did not have grounds to conduct a counterintelligence investigation of Flynn at the time agents interviewed him, Attorney William Barr has said.
Timothy Shea, the interim U.S. Attorney for the District of Columbia, in the dismissal request wrote that even if Flynn had lied, the government “does not believe Mr. Flynn’s statements were material” in a legal sense. The Justice Department also did not believe it could prove he was guilty of making false statements beyond a reasonable doubt, Shea wrote.
Shea’s motion also cited the recent release of previously undisclosed documents, including handwritten notes written by the FBI officials investigating Flynn.
One note, written by then-FBI counterintelligence chief Bill Priestap, was prepared shortly before FBI agents questioned Flynn about his discussions with Russia’s then-ambassador to the United States, Sergey Kislyak in the weeks before Trump took office.
“What’s our goal? Truth/Admission or get him to lie, so we can prosecute him or get him fired?” Priestap had written.
Flynn, 61, served only several weeks as national security advisor before being forced out in February 2017 after lying to Vice President Mike Pence about the nature of his discussions with Kislyak.
Flynn had told Pence he did not dicuss U.S. sanctions imposed by the Obama administration against Russia, which led the vice president to defend him in television interviews. In fact, Flynn did talk about those sanctions with Kislyak.
Flynn pleaded guilty in December 2017 to lying to FBI agents about the Kislyak conversations.
As part of his plea, Flynn agreed to cooperate in the then-special prosecutor Robert Mueller’s probe of Russian interference in the 2016 presidential election.
His scheduled sentencing hearing in December 2018 was dramatically aborted after Sullivan indicated he might send Flynn to jail if the retired Army lieutenant general did not postpone the proceeding
“Arguably you sold your country out,” the judge fumed at the hearing.
Sullivan then allowed Flynn to remain free pending sentencing to give him time to finish his cooperation with Mueller.
Months later, Flynn dismissed his legal team and hired a new criminal defense attorney, the Mueller critic Powell, who soon began efforts to undo the criminal case. Powell accused prosecutors of withholding exculpatory information from Flynn, a claim that the Justice Department for months repeatedly denied.
Powell eventually asked Sullivan to dismiss the case.
The Justice Department’s recent request to dismiss the case came before Sullivan had ruled on Powell’s request.
The dismissal bid by the Justice Department came over the apparent objections of prosecutors who handled the case, none of whom signed the court document seeking to drop the case.
One ex-prosecutor who quit the Justice Department in protest over its handling of Republican operative Roger Stone’s criminal case in a scathing Washington Post article this week accused the department of a “betrayal of the rule of law and Barr of “egregious” conduct by intervening in that case and the one of Flynn.
The ex-prosecutor, Jonathan Kravis, also warned that the Justice Department’s intervention in the Stone and Flynn cases, “to protect an ally of the president … betrays this principle” of a “commitment to equal justice under the law.”
“I am convinced that the department’s conduct in the Stone and Flynn cases will do lasting damage to the institution,” Kravis wrote.
Kravis wrote that in both Stone’s and Flynn’s 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.
“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.”