Flynn’s case generated great debate after District Court Judge Emmet Sullivan declined to immediately throw the case against the retired general. The DOJ moved to drop the Flynn case on May 7, explaining that they believe the FBI had no “justifiably predicated investigation” when bureau agents went to interview Flynn on Jan. 24, 2017.
Sullivan did not immediately act on the request, and instead has appointed former federal judge 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 and “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 whether he should dismiss the case and potentially charge Flynn for contempt of court.
His move prompted Flynn’s lawyers to seek an order—a writ of mandamus—at the appeals court to force Sullivan to grant the dismissal. The DOJ filed a brief in these proceedings on Monday, arguing that Sullivan’s move was not appropriate as it is not the court’s role to make prosecutorial decisions.
“Instead of inviting further proceedings, the court should have granted the government’s motion to dismiss. And given the court’s infringement on the Executive’s performance of its constitutional duties, a writ of mandamus is appropriate,” the DOJ wrote in its brief (pdf).
The judicial or legislative branches may not interfere with the prosecutorial discretion of the executive by compelling that branch to prosecute certain individuals, the attorneys for the department argued.
Referring to a similar prior case, United States v. Fokker Services B.V., the attorneys argued that the U.S. Constitution allocates the primary prosecutorial discretion to the executive branch and that the judiciary generally lacks the power to second-guess those decisions, “much less to impose its own charging preferences.”
“The district court plans to subject the Executive’s enforcement decision to extensive judicial inquiry, scrutiny, oversight, and involvement. Under the Supreme Court’s and this Court’s precedents, it is clear and indisputable that the district court has no authority to embark on that course,” the attorneys wrote.
The DOJ filing also addressed Sullivan’s move to appoint an amicus curiae to help with the decision on whether to charge Flynn for contempt of the court for perjury, when he moved to change his plea.
The attorneys argued that Flynn’s move to change his plea to assert his innocence “did not expose himself to prosecution for criminal contempt of court.” They also added that even if Flynn had committed criminal contempt, the district court lacks the authority to bring its own case against the general.
The DOJ brief was signed by a number of attorneys including Noel Francisco, the Solicitor General of the United States.
John Reeves, an appellate attorney and former assistant Missouri attorney general, said it was “highly unusual and rare” for the solicitor general and five of his deputies sign the brief. Usually, he said, the solicitor general authorizes a U.S. attorney to draft and submit the brief, let alone sign and participate in the drafting.
“It show[s] that the DOJ is gravely concerned about Judge Sullivan’s actions, and wants them rectified immeidately [sic],” Reeves wrote in a Twitter thread reacting to the DOJ’s filing.
The DOJ brief comes hours after Sullivan’s lawyer, Beth Wilkinson, submitted a brief telling the appeals to stay out of the case. Wilkinson said the DOJ May 7 motion to dismiss is so unusual, the judge needs more information to evaluate it.
She argued that the motion included no “affidavits or declarations,” was “signed by the Acting U.S. Attorney alone, with no line prosecutors joining,” and didn’t address other allegedly false statements of Flynn’s included in his statement of offense.
Wilkinson’s argument did not mention any of the documents the DOJ cited as a reason for dismissing the case. These documents, recently released, included handwritten notes that revealed top officials in the agency had questioned whether the goal of questioning Flynn was to “get him to lie, so we can prosecute him or get him fired?”
The documents also revealed that Peter Strzok, the FBI’s then-deputy assistant director for counterintelligence operations, urgently reached out to agents handling the Flynn case to advise them not to close the case after the agents determined there were no more leads to follow in the Flynn probe.
In December 2017, Flynn pleaded guilty to lying in the FBI interview about his call with Russian ambassador Sergey Kislyak but afterward sought to withdraw that plea. Flynn’s lawyers argued that he had been entrapped by the FBI in the interview.
Petr Svab contributed to this report.