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Judge delays Gen. Flynn case dismissal, allows outside opinions

Retired U.S. Army lieutenant general Michael Flynn at a campaign rally for Donald Trump at the Phoenix Convention Center in Phoenix, Arizona. (Gage Skidmore/Flickr)
May 13, 2020

The judge overseeing the case against Gen. Michael Flynn, the former National Security Adviser to President Donald Trump, decided to delay the U.S. Department of Justice’s request to dismiss the case and is now allowing outside parties to submit their opinions.

On Tuesday evening,  Judge Emmet G. Sullivan decided to allow outside parties to submit amicus curiae or “friend of the court” briefs in order to weigh in on the case against Flynn, court documents showed.  Sullivan’s decision would delay the outcome of Flynn’s case, which the DOJ moved to dismiss last week, and would instead call upon the opinions of outside groups.

Flynn was charged with making false statements to FBI investigators during a January 2017 interview about a conversation he had with a Russian ambassador just weeks before onboarding at the White House at the start of the Trump administration. Flynn previously pleads guilty to the charge, but has since moved to overturn his guilty plea, arguing that the prosecutors withheld exculpatory details suggesting he may not have lied after all.

Recently disclosed FBI notes indicated an internal discussion as to whether FBI agents sought to interview Flynn as a pretext to get him to lie.

Last week the DOJ moved to drop the case entirely and stated in their motion that “continued prosecution of this case would not serve the interests of justice.”

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“Through the course of my review of General Flynn’s case, I concluded the proper and just course was to dismiss the case,” said U.S. Attorney Jeff Jensen, who reviewed the Flynn case. “I briefed Attorney General Barr on my findings, advised him on these conclusions, and he agreed.”

Flynn’s legal counsel has already filed a motion to block the judge’s request for the opinions of outside parties. Flynn’s defense team noted the request to file amicus briefs was first made by a group referring to itself as “Watergate Prosecutors.” Flynn’s team noted the court had already denied 24 previous requests to submit outside opinions.

While amicus briefs are common in civil cases, Flynn’s team argued the rule “has no analog in either the Federal Rules of Criminal Procedure or the Local Criminal Rules of this court.” Flynn’s team further argued that in such a case involving federal prosecutors, the job of arguing the prosecution belongs to the government and inviting outside opinions would violate the responsibility of the DOJ to try the case independently of outside political motivations.

To this point, it remains unclear what continued involvement the DOJ is to have in prosecuting the case, given their request to drop the case. Both the DOJ and Flynn’s team have agreed on having the case dismissed, but Sullivan’s decision would appear to keep the case going without the interest of either the prosecution or the defense to continue.

In a Wednesday decision, Sullivan denied the Flynn team’s motion to block amicus briefs, while also denying a proposed amicus brief. The court will instead set a scheduling order to determine what parties may submit amicus briefs and how the case will proceed.