On May 18, several filings hit the docket in the Michael Flynn case, but not the one conservatives anticipated since Judge Emmet Sullivan’s shocking announcement last week that he intended to seek input from amicus curiae on whether to grant the government’s motion to dismiss the criminal charge against Flynn.
Those on the right decrying Judge Sullivan’s judicial overreach anticipated the prosecuting U.S. attorney to promptly petition the D.C. Circuit Court for a writ directing Judge Sullivan to dismiss the case. Instead, conservatives caught a glimpse of the circus Judge Sullivan has invited into his courtroom.
For more than two years, Flynn’s case lingered on Sullivan’s docket, with the former President Trump national security advisor first awaiting sentencing for making false statements to the FBI, and then, after replacing his Covington and Burling lawyers with Sidney Powell, waiting for Sullivan to rule on a motion to compel the production of exculpatory evidence. Judge Sullivan denied that motion but has yet to rule on Flynn’s pending motion to dismiss the charge against him for prosecutorial misconduct and two separate motions to withdraw his guilty plea.
Earlier this month, Flynn’s claim of prosecutorial misconduct received a boost when an outside U.S. attorney, Jeff Jensen, assigned by Attorney General William Barr to review the Flynn investigation, provided Powell previously withheld evidence that confirmed many of Flynn’s claims. That evidence included text messages and handwritten notes establishing that when the FBI interviewed Flynn on January 24, 2017, they had no legitimate investigatory purpose for questioning him. Instead, the questioning of Flynn served as a perjury trap. As such, any statements Flynn made during the interview—even if false—were not material and thus not a crime.
Shortly after Powell filed this newly discovered evidence with the court, the U.S. attorney for the District of Columbia filed a motion to dismiss the criminal charge against Flynn with prejudice. That motion detailed the sordid history of the Flynn investigation and concluded that the criminal charge brought against Flynn was unwarranted.
While Flynn and his family celebrated, Judge Sullivan hatched a plan to short-circuit the reprieve. First, he issued an order announcing his intent to accept amicus curiae, or friend of the court, briefs from the public. Then he announced his appointment of retired judge John Gleeson as amicus curiae: Judge Sullivan charged Gleeson with presenting “arguments in opposition to the government’s Motion to Dismiss,” and in addressing whether the court should “issue an Order to Show Cause why Mr. Flynn should not be held in criminal contempt for perjury…”
Gleeson’s answer seems a foregone conclusion, given that the same day Judge Sullivan tapped Gleeson to serve as an amicus curiae, an op-ed Gleeson co-authored ran in the Washington Post, suggesting the Flynn case not be dismissed because “the record reeks of improper political influence.”
On Monday, we got a further glimpse into what Gleeson and Sullivan have in mind for Flynn and the country. “I respectfully request permission,” Gleeson wrote in a motion filed with the court, to submit a brief by June 10, addressing three issues.
The first issue Gleeson intends to explore concerns the court’s authority to deny a motion to dismiss and the standard. Second, Gleeson noted he intended to identify “any additional factual development I may need before finalizing my argument in opposition to the government’s motion in this case.” Finally, Gleeson intends to discuss whether Flynn should be ordered to explain to the court why he should not be held in criminal contempt for perjury.
It is the second issue that gives away the game—and illustrates the lawlessness of Judge Sullivan’s order. Judge Sullivan and Gleeson want to relitigate the decision not to prosecute Flynn. But that is not for the judiciary to do, it is an executive branch decision.
An amicus curiae brief signed by the attorneys general of 15 states in support of the United States’ motion to dismiss makes that point clear:
Our Constitution vests the ‘executive power … in a President of the United States’. . . That power includes the power to prosecute. But, just as important, it includes the power not to prosecute. The judiciary has only the ‘judicial [p]ower,’ which includes only the power to resolve cases and controversies. Judges have no share of the executive power, and thus no say in the decision whether to prosecute. . . .This Court may not order the commencement of any prosecution, and therefore may not order the continuation of what it could not initiate. The Court should grant the United States’ motion without delay and without irrelevant or personal comment.
While the states attorneys general’s synopsis of the constitutional separations of powers concisely addressed the legal issues, it was the closing comment that told Judge Sullivan they saw through his charade: Sullivan’s call for amicus briefing wasn’t to serve the public interest, but served partisan political interests. And the state attorneys general cautioned against this path.
“It has become trendy in recent years for courts to weigh in on the wisdom of this administration’s policy decisions. Too often, that commentary comes in grandiose terms more appropriate for an op-ed than a judicial opinion,” they wrote. “The steady stream of overwrought commentary,” the amicus curiae continued, “further inserts the judiciary into the partisan scrum, . . . and erodes public confidence in the courts’ ability to serve as neutral arbiters in politically sensitive cases.”
But it is not just any eventual commentary from Judge Sullivan that will “insert the judiciary into the partisan scrum.” No, it was the order he entered last week inviting amicus curiae into the fray.
The anti-Trump group “Protect Democracy” has already posted on the web the amicus curiae brief it intends to file with the court. That brief, rather than limiting itself to the separation of powers principles at stake, makes the case all about Trump and Attorney General Barr.
“Amici submit this brief out of concern that President Trump and Attorney General Barr have flouted [Department of Justice principles] by seeking to dismiss the prosecution of Michael Flynn for what appears to be partisan political reasons,” the brief opens, before later claiming that the motion to dismiss, “bears the hallmarks of a brazen attempt to protect an ally of the President.”
The Protect Democracy group then details what they maintain is “a long history of actions undertaken by Attorney General Barr in furtherance of President Trump’s personal political interests.” (As an example, the group asserts that Barr mischaracterized Special Counsel Robert Mueller’s report, even though Mueller acknowledged Barr’s statement was accurate.)
There will soon be a steady stream of amicus curiae briefs making news that attempt to relitigate everything and anyone connected to the Trump administration. But after three years of Russia, Russia, Russia, and the now-emerging evidence of the Obama administration’s abuse of power, that ploy is political suicide.
Barr cannot stand down. The constitutional principle of separation of powers is too important. And so is justice for Flynn.