Former Judges, Lawyers Back Justice Department’s Dismissal of Flynn Case

May 29, 2020 Updated: May 29, 2020

Dozens of former judges and prosecutors have requested to file a brief in support of a Justice Department motion to dismiss the criminal case against President Donald Trump’s former national security adviser Lt. Gen. Michael Flynn.

The bipartisan group of legal professionals on Thursday asked U.S. District Court Judge Emmet G. Sullivan to grant its request to file a friend-of-the-court brief, which they also submitted to the court. Ex-Whitewater independent counsel Ken Starr and former Rep. Trey Gowdy (R-S.C.) are among the list of lawyers who joined the brief.

The group, who says it has an interest in how certain legal rules regarding dismissal work, argued that the court has no basis to review and deny the federal government’s motion to dismiss as it runs afoul the separation of powers under the U.S. Constitution.

“The issue presented in this case is whether the court has discretion to deny a motion to dismiss to which the defendant consents, as Gen. Flynn has done here. The answer is no,” the group wrote (pdf).

The role of the court, the group said, is “to safeguard the integrity of the judicial process, to act as a neutral umpire in contested legal issues, to protect the rights of the defendant, and at sentencing to act as a voice for the community.” It added that it is the executive branch’s role to decide whether to prosecute a case.

“The court is never a partisan for either the prosecution or the defense; it must never assume the mantle of prosecutor or defense counsel. Moreover, the separation of powers precludes the court from exercising Executive powers,” the group wrote.

It also argued that the separation of powers precludes the court from “second-guessing the prosecutor’s exercise of discretion regardless of the considerations that prompt the executive branch’s decision.”

This comes after Sullivan appointed John Gleeson (pdf), a former federal judge in New York, as an amicus curiae—or friend-of-the-court—to “present arguments in opposition to the government’s Motion to Dismiss” in the criminal case against Flynn. Sullivan also ordered Gleeson to “address whether the Court should issue an Order to Show Cause why Mr. Flynn should not be held in criminal contempt for perjury.”

He also invited outside parties to weigh in on the case with their opinions in friend-of-the-court briefs.

The DOJ said on May 7 that it was dropping its case against the retired general because they believe the FBI had no “justifiably predicated investigation” when bureau agents went to interview Flynn on Jan. 24, 2017.

The prosecutor who wrote the court filing argued that the government wasn’t “persuaded” that the FBI interviewed Flynn with “a legitimate investigative basis,” and that Flynn’s guilty plea was irrelevant. He said to be a crime, a lie needs to be “material,” which means it has to have “probative weight” on the investigated matter.

Flynn’s lawyers requested a superior court, District of Columbia appeals court, to intervene in the case after Sullivan’s move, alleging that the judge is breaking rules and precedent in Flynn’s case. That court has ordered Sullivan to respond to Flynn’s request to the circuit court to intervene in the case within 10 days. Sullivan has since retained trial lawyer Beth Wilkinson to help in the appeal case.

Earlier this month, a group of 15 Republican attorneys general also argued in a separate friend-of-the-court brief to the same court that the separation of powers prevents the judge from compelling the Justice Department (DOJ), which is part of the executive branch, to prosecute a case.

“Judges have no share of the executive power, and thus no say in the decision whether to prosecute,” the attorneys general wrote (pdf).

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