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Federal Judge Slams the Brakes on DOJ Attempt to Drop Michael Flynn Case

Lieutenant General Michael Flynn (ret.), National Security Advisor Designate speaks during a conference on the transition of the US Presidency from Barack Obama to Donald Trump at the US Institute Of Peace in Washington DC, January 10, 2017.

Federal Judge Emmet G. Sullivan on Tuesday stopped — at least temporarily — the federal government’s attempt to drop its case against former National Security Advisor Michael Flynn. Sullivan made the move shortly after Flynn asked that the case against him be dismissed “immediately.”

The judge, in a minute order posted to the Flynn case’s electronic docket, said he anticipated amicus briefs would be filed in the matter and wanted to give any interested parties time to participate.  The so-called “friend of the court” briefs allow others who are not a party to a case to submit arguments “only for the benefit of the court,” Sullivan noted.

“It is solely within the court’s discretion to determine the fact, extent, and manner of the participation” of amicus parties, the judge said.  The briefs are helpful “when the amicus has unique information or perspective that can help the court beyond the help that the lawyers for the parties are able to provide,” Sullivan added; he also noted  reasons why parties should not be allowed to file amicus briefs.

The move raises questions about who will take the cue to file such a brief.  (UPDATE:  Flynn’s lawyers filed a motion even later Tuesday to prevent an amicus brief from entering the record; our additional coverage is here.)

In issuing the order, Sullivan quoted a similar minute order from the judge who oversaw the trial of former Donald Trump confidant Roger Stone.

“As Judge Amy Berman Jackson has observed, ‘while there may be individuals with an interest in this matter, a criminal proceeding is not a free for all,'” Sullivan wrote.  In other words, while Sullivan is giving parties some time to have their voices heard, his patience is not unlimited.  “Accordingly, at the appropriate time,” he wrote, “the Court will enter a Scheduling Order governing the submission of any amicus curiae briefs.”

Jackson and Sullivan both sit as judges on the Washington, D.C. federal district court.

Flynn pleaded guilty to lying to FBI agents. He eventually fired his lawyers and hired a new legal team which sought to withdraw the plea. New authorities took over the case after a prosecutorial shakeup.  In February, Barr picked U.S. Attorney for the Eastern District of Missouri Jeffrey Jensen to examine the case.  Jensen, an appointee of President Donald Trump, was tapped to examine the circumstances of the FBI’s Flynn interview.  Attorney General William Barr followed Jensen’s recommendation and agreed the case should be dismissed.  Timothy Shea, Barr’s former aide-turned-U.S. Attorney in D.C., also signed off on the motion to dismiss the case.

If Sullivan grants the motion by Flynn to withdraw his plea and then grants the prosecutors’ motion to drop the case altogether, the prosecution of Flynn will legally end.

Shortly before the judge’s decision, Flynn’s legal team filed a document which consented to the government’s move to drop the case.

“On May 7, 2020, the Government filed its Motion to Dismiss the Criminal Information Against the Defendant Michael T. Flynn,” that document tersely states. “Mr. Flynn agrees that the dismissal of this case meets the interests of justice and requests that this matter be dismissed immediately, with prejudice.”

A dismissal with prejudice would mean the case could never be filed again.

Judge Sullivan was nominated to judicial posts by presidents Ronald Reagan, George H. W. Bush, and Bill Clinton.

READ the full text of the minute order and Flynn’s consent document below:

MINUTE ORDER as to MICHAEL T. FLYNN. 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 pursuant to Local Civil Rule 7(o). There is no analogous rule in the Local Criminal Rules, but “[the Local Civil] Rules govern all proceedings in the United States District Court for the District of Columbia.” LCvR 1.1. “An amicus curiae, defined as friend of the court,… does not represent the parties but participates only for the benefit of the Court.” United States v. Microsoft Corp., No. 98-cv-1232(CKK), 2002 WL 319366, at *2 (D.D.C. Feb. 28, 2002) (internal quotation marks omitted). Thus, “[i]t is solely within the court’s discretion to determine the fact, extent, and manner of the participation.” Jin v. Ministry of State Sec., 557 F. Supp. 2d 131, 136 (D.D.C. 2008) (citation and internal quotation marks omitted). “‘An amicus brief should normally be allowed when a party is not represented competently or is not represented at all, when the amicus has an interest in some other case that may be affected by the decision in the present case (though not enough affected to entitle the amicus to intervene and become a party in the present case), or when the amicus has unique information or perspective that can help the court beyond the help that the lawyers for the parties are able to provide. Otherwise, leave to file an amicus curiae brief should be denied.'” Id. at 137 (quoting Ryan v. Commodity Futures Trading Comm’n, 125 F.3d 1062, 1064 (7th Cir. 1997)); see also LCvR 7(o). Although there is no corollary in the Local Criminal Rules to Local Civil Rule 7(o), a person or entity may seek leave of the Court to file an amicus curiae brief in a criminal case. See Min. Order, United States v. Simmons, No. 18-cr-344 (EGS) (D.D.C. May 5, 2020); cf. United States v. Fokker Servs. B.V., 818 F.3d 733, 740 (D.C. Cir. 2016) (appointing amicus curiae in a criminal case). As Judge Amy Berman Jackson has observed, “while there may be individuals with an interest in this matter, a criminal proceeding is not a free for all.” Min. Order, United States v. Stone, No. 19-cr-18 (ABJ) (D.D.C. Feb. 28, 2019). Accordingly, at the appropriate time, the Court will enter a Scheduling Order governing the submission of any amicus curiae briefs. Signed by Judge Emmet G. Sullivan on 5/12/2020. (lcegs3) (Entered: 05/12/2020)

 

Flynn Consent to Dismiss by Law&Crime on Scribd

This article began as a breaking news report and has been updated.

[Image via CHRIS KLEPONIS/AFP via Getty Images.]

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University.  He is the anchor and executive producer of The Daily Debrief on the Law&Crime Network.  The broadcast is a recap of the day's most compelling trials and court proceedings.  DISCLAIMER:  This website is for general informational purposes only.  You should not rely on it for legal advice.  Reading this site or interacting with the author via this site does not create an attorney-client relationship.  This website is not a substitute for the advice of an attorney.  Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.