A federal judge on Tuesday said he would not immediately approve the Department of Justice’s motion to drop charges against former Trump administration national security adviser Lt. Gen. Michael Flynn, and would instead consider letting outside parties weigh in on the case with their opinions.
D.C. District Judge Emmet Sullivan said in a written order late Tuesday that instead of dismissing the Flynn prosecution right away, “given the current posture of this case,” he anticipated that interested outside parties will “seek leave of the Court” to file briefs expressing their opinions, referred to as “amicus curiae”—or friend-of-the-court—briefs.
Sullivan, a Clinton appointee, said he expects a scheduling order governing the submission of the briefs.
Flynn’s legal team criticized Sullivan’s move to consider the amicus filings. In a motion late Tuesday, Sidney Powell, a former federal prosecutor who took over representation for Flynn in June 2019, pointed out, “This Court has consistently—on 24 previous occasions—summarily refused to permit any third party to inject themselves or their views into this case.”
“The proposed amicus brief has no place in this Court,” Powell and other attorneys for Flynn wrote, objecting to an amicus brief that a group identifying itself as “Watergate Prosecutors” had said on May 11 that it intended to submit.
“No rule allows the filing, and the self-proclaimed collection of ‘Watergate Prosecutors’ has no cognizable special interest,” Flynn’s attorneys said in the six-page motion. “Separation of powers forecloses their appearance here. Only the Department of Justice and the defense can be heard.”
“A criminal case is a dispute between the United States and a criminal defendant. There is no place for third parties to meddle in the dispute, and certainly not to usurp the role of the government’s counsel,” the attorneys also wrote. “For the Court to allow another to stand in the place of the government would be a violation of the separation of powers.”
In an interview Tuesday evening with Fox News, Justice Department spokesperson Kerri Kupec said the department’s position was clear in the motion to dismiss the case.
“We do not believe this case should have been brought, we are correcting that and we certainly hope that in the interest of true justice, that the judge ultimately agrees and drops the case against General Flynn,” she said.
Flynn pleaded guilty in 2017 to one count of lying to the FBI.
The DOJ filed a motion to dismiss the case against him on May 7. The department said that when the FBI interviewed Flynn on Jan. 24, 2017, the investigation into him was “no longer justifiably predicated” and “seems to have been undertaken only to elicit those very false statements and thereby criminalize Mr. Flynn.” The motion was accompanied by more than a dozen documents substantiating the decision.
The Associated Press contributed to this report.