Fifteen Republican attorneys general urged a federal judge presiding over Lt. Gen. Michael Flynn’s case to dismiss a criminal case against the retired general, arguing that a failure to do so would overstep the judge’s authority under the Constitution.
In a friend-of-the-court brief on Monday, the group of top prosecutors asserted 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).
This comes after U.S. District Judge Emmet 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.”
Sullivan also opened up the case to allow outside parties to weigh in on the case with their opinions in friend-of-the-court briefs.
The orders follow a DOJ motion asking Sullivan to dismiss the case against Flynn. 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.
In their filing, the attorneys general called on the court to grant the DOJ’s motion and to do so “without commentary on the decision to charge or not to charge.” They say by commenting, the court would “[disrobe] the judiciary of its cloak of impartiality.”
“Too often, that commentary comes in grandiose terms more appropriate for an op-ed than a judicial opinion. These opinions leave the public with the impression that courts apply ‘administration-specific standard[s]’ in deciding what this President may do and what may permissibly be said about this President’s policies,” the prosecutors wrote.
The prosecutors also argued that the court’s move to delay the case by appointing a third-party lawyer and accepting amicus briefs was not necessary because it had “no say in the federal government’s decision not to prosecute.”
“Simply put, the decision not to pursue a criminal conviction is vested in the executive branch alone—and neither the legislature nor the judiciary has any role in the executive’s making of that decision,” they wrote.
The brief was signed by attorneys general from Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Louisiana, Mississippi, Missouri, Oklahoma, Ohio, South Carolina, Texas, Utah, and West Virginia. Ohio Attorney General Dave Yost penned the filing.
Flynn’s case garnered renewed attention after recently released documents pertaining from the DOJ 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.