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House and Senate Republicans Defend Michael Flynn: the Constitution ‘Solely’ Empowers Executive Branch to Prosecute

WASHINGTON, DC - JUNE 24: President Donald Trump’s former National Security Adviser Michael Flynn leaves the E. Barrett Prettyman U.S. Courthouse on June 24, 2019 in Washington, DC. criminal sentencing for Flynn will be on hold for at least another two months.

Republicans in the House of Representatives and Senate voiced their support on Monday for retired lieutenant general and onetime national security advisor Michael Flynn amid his ongoing legal woes. They agreed that the U.S. Court of Appeals for the District of Columbia Circuit should grant Flynn’s petition for a writ of mandamus, thereby directing the lower court judge to toss the case posthaste.

Eleven GOP representatives submitted a lengthy amicus brief in federal court calling for U.S. District Judge Emmet Sullivan to drop longstanding charges against Flynn–who was prosecuted and twice pleaded guilty for lying to federal agents during the Robert Mueller investigation before eventually moving to withdraw his plea in January 2020.

The House document reads as a testament to the power of executive branch authority–specifically that of the U.S. Attorney General’s Office. After new details about the Federal Bureau of Investigation (FBI) inquiry into Flynn came to light in May, Attorney General Bill Barr, citing U.S. Attorney Jeffrey Jensen’s recommendation, directed his subordinates to drop the charges. Judge Sullivan, however, who has said some controversial things over the course of the Flynn case, did not accede to the request. Instead, the D.C. judge asked for outside parties to file legal briefs. Sullivan even appointed retired judge John Gleeson as amicus curiae to argue against the dismissal of the case and to argue why Flynn shouldn’t be held in criminal contempt for perjuring himself.

RELATED: Michael Flynn Judge Just Told the D.C. Circuit Why He Refused to Immediately Dismiss Prosecution

“[T]he powers of the Executive Branch are at their zenith when the Constitution’s grant of authority in Article II is seconded by statutes explicitly vesting power and authority in the Executive,” the House filing reads. “That is emphatically the case here with respect to the power of the Executive Branch in general, and the Justice Department in particular under the direction of the Attorney General, to have the exclusive right and duty to exercise prosecutorial discretion and to control the prosecution of the case against this defendant.”

Federal law, however, requires “leave of court” for such a dismissal. That means Judge Sullivan has to sign off on it–and such grants are typically pro forma affairs. But the controversial and atypical request for interested parties to publicly assess the legal merits of Flynn’s case has been a lightning rod of controversy. Administration critics view the judge’s efforts as an attempt to salvage a “rule of law” long ignored by Trumpworld. Administration partisans view the judge as an unconstitutional usurper of the highest order and lowest esteem.

“[T]he trial court’s clearly stated purpose was precisely to prevent the Executive Branch from exercising prosecutorial discretion,” the House GOP’s Monday afternoon amicus brief continued. “By calling for briefing on whether the court should acquiesce in the Government’s decision to dismiss the indictment in this case, or instead choose some other course opposed by the Attorney General, the trial court revealed clearly its intention to substitute its own judgment for the prosecutor’s on whether such dismissal should take place. That is the dictionary definition of ‘prevent[ing] the Executive Branch from accomplishing’ the function assigned, exclusively to the Justice Department, by Congress.”

GOP members of the Senate followed suit with a much shorter legal filing that also makes its case by way of defending the executive branch’s purported lone authority over criminal matters.

“[T]he Constitution vests the power to prosecute—and the corresponding power to stop prosecuting—solely with the Executive Branch,” the brief argued. “The text, original understanding, and structure of the Constitution all confirm that fact.”

RELATED: DOJ Fires Back at Judge Emmet Sullivan in D.C. Circuit: We’re the Prosecutors Here, Not You

The segment of the federal code at issue in the disposition of Flynn’s case is the constitutional common law known as the Federal Rules of Criminal Procedure. Specifically, Rule 48(a)‘s provision which provides that “the government may, with leave of court, dismiss an indictment, information, or complaint.”

Rather than hashing out the finer points of what, precisely that language means and how it may or may not apply in Flynn’s case, the senators simply argue that language should be ignored entirely.

“The Federal Rules of Criminal Procedure cannot override the Constitution’s framework, and nothing in those Rules allows a court to take the prosecutorial reins or to appoint a private party to step into the prosecution’s shoes,” the document said. “Because the proceedings [against Flynn] conflict with the Constitution, the laws passed by Congress, and the Federal Rules, this Court should grant mandamus and order the indictment’s dismissal.”

A rather drastic departure from even Barr’s own read of the “leave of court” requirement, the senators also staked out some legal territory in the alternative. After arguing that the Federal Rules don’t matter at all because of alleged constitutional primacy, the brief asserted that the rules themselves don’t allow for Flynn’s continued prosecution.

Again the Senate GOP filing at length:

The Federal Rules of Criminal Procedure do not allow the proceedings [against Flynn]. Although Rule 48(a) requires “leave of court” before dismissing a prosecution, this Court has held that the “leave of court” clause is “narrow,” and serves only to “protect a defendant against prosecutorial harassment.” It does not grant district courts the prerogative “to deny a prosecutor’s Rule 48(a) motion . . . based on a disagreement” with the prosecution’s charging decisions. Nor could it: Any other reading of Rule 48 would render it unconstitutional by intruding on the Executive’s “core prerogative to dismiss criminal charges.” Especially because the natural reading of the Rule would avoid any constitutional concerns, the Court should follow that reading.

The congressmen who filed the initial brief are Rep. Louie Gohmert (R-Texas), Rep. Andy Biggs (R-Ariz.), Rep. Mike Johnson (R-Louisiana), Rep. Bill Flores (R-Texas), Rep. Jody Hice (R-Ga.), Rep. Paul Gosar (R-Ariz.), Rep. Ted Budd (R-N.C.), Rep. Andy Harris (R-Maryland), Rep. Ron Wright (R-Texas), Rep. Ralph Norman (R-S.C.) and Rep. W. Gregory Steube (R-Fla.).

The upper chamber members are Majority Leader Sen. Mitch McConnell (R-Ky.), Sen. Tom Cotton (R-Ark.), Sen. Mike Braun (R-Ind.), Sen. Kevin Cramer (R-N.D.), Sen. Ted Cruz (R-Texas), Sen. Charles E. Grassley (R-Iowa), and Sen. Rick Scott (R-Fla.).

Read both of the GOP filings below:

US v FLYNN – House of Repre… by Law&Crime on Scribd

Us v Flynn – Senate Gop Brief by Law&Crime on Scribd

[image via Alex Wroblewski/Getty Images]

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