Judge slows down effort to drop Flynn case

Kyle Cheney and Josh Gerstein

The judge presiding over the tumultuous case of Michael Flynn pumped the brakes Tuesday on an effort by the Justice Department to drop the case against the former national security adviser and ally of President Donald Trump.

Minutes after lawyers for Flynn urged Judge Emmet Sullivan to "immediately" toss the matter, Sullivan indicated he wasn't ready to act just yet, instead signaling he'll set a schedule to accept briefs from outside parties who might have an interest in the case.

"[A]t the appropriate time, the Court will enter a Scheduling Order governing the submission of any amicus curiae briefs," Sullivan wrote in an order posted Tuesday afternoon. He said that "given the posture of the case" he anticipates that many outside parties will have an interest in weighing in.

Sullivan did not say whether he plans to hold a hearing on the government’s unusual motion to abandon the two-and-a-half year old case, but his announcement Tuesday signals that he plans to entertain arguments — at least in writing — against the unified front in favor of dismissal being advanced by the prosecution and defense.

The prospect of the case dragging on with lawyers presenting arguments for Flynn's continued prosecution met with quick resistance from Flynn's defense.

"A criminal case is a dispute between the United States and a criminal defendant,” Flynn defense lawyer Sidney Powell and her co-counsel wrote in a court filing later Tuesday. “There is no place for third parties to meddle in the dispute, and certainly not to usurp the role of the government’s counsel."

Powell argued that such friend-of-the-court briefs are not permitted in criminal cases under local court rules and Supreme Court precedent.

"This travesty of justice has already consumed three or more years of an innocent man’s life — and that of his entire family,” she wrote. “No further delay should be tolerated or any further expense caused to him and his defense."

Just prior to Sullivan's order, Flynn's lawyers sent the court a short notice confirming that he consents to the case against him being dropped. His lawyers had not directly said that to the judge, although last week they filed a motion seeking to withdraw all their other pending motions in the case in light of the government's change of heart.

"Mr. Flynn agrees that the dismissal of this case meets the interests of justice and requests that this matter be dismissed immediately, with prejudice," Powell wrote.

Sullivan's move on Tuesday appeared to have been prompted at least in part by a group of former Watergate prosecutors asking the judge's permission to file an amicus brief challenging the government's attempt to dismiss the case.

In a filing on Monday not immediately posted on the court's docket, lawyers representing the 16 ex-prosecutors suggested Flynn's conviction was final when he entered his guilty plea, disputed some of the Justice Department's factual assertions and suggested political influence might be at work.

Sullivan's order addressing amicus briefs was his first public action since the extraordinary development five days ago in Flynn's fight to undo his decision to plead guilty to lying to the FBI in 2017. Flynn admitted then that he lied to FBI agents who visited him at the White House in an interview that took place just days after Trump took office. The FBI agents reported that Flynn denied having any substantive discussions with Russia's ambassador to the United States during pre-inauguration conversations between the two, contradicting intercepts of those conversations captured by the intelligence community.

Prior to the FBI interview, Flynn had already offered a similar denial to Vice President Mike Pence. Trump cited Flynn's lies to Pence and the FBI as grounds for firing Flynn after only about three weeks on the job.

In a bid for leniency, Flynn cooperated extensively with special counsel Robert Mueller's investigation as part of his plea agreement.

But Flynn reversed his posture over the past year, first accusing the government of widespread misconduct and later moving to withdraw his guilty plea.

Amid efforts to unravel the plea, Justice Department leaders reversed course and decided to drop the case against Flynn, citing improper actions by the FBI in its decision to interview Flynn in the first place.

A career prosecutor assigned to the case while working in Mueller's office, Brandon van Grack, withdrew, and the department's notice to Sullivan was signed only by the top prosecutor for Washington, DC., who is a former aide to Attorney General William Barr.

The move was hailed by Trump and his supporters, but sparked outrage among hundreds of FBI and Justice Department alumni, who accused Barr of orchestrating a political favor for a close ally of Trump.

Sullivan is now weighing the Justice Department's motion to dismiss the case, and his decision to accept new information could upend hopes for a quick resolution by Flynn and his allies.

In addition to the smattering of formal legal filings, a tussle over the Flynn case has played out in public over the past few days, through op-eds, news reports, cable TV appearances and social media posts.

President Barack Obama reportedly lamented the Justice Department's decision last week, declaring that it showed "our basic understanding of rule of law is at risk" in the U.S.. That prompted Flynn lawyer Powell to push back Tuesday with a public memo faulting Obama's claim that the move to drop the Flynn case was without precedent.

"You need more help than you realize as your statement is entirely false. However it does explain the damage to the Rule of Law you allowed throughout your administration," Powell wrote.

In her open letter to Obama, Powell also hawked her book about Sullivan's decision to dismiss the corruption-related prosecution of late Sen. Ted Stevens (R-Alaska) after the government admitting withholding evidence favorable to Stevens' defense.

"As horrifying as the facts of the Stevens case were, they pale in comparison to the targeted setup, framing, and prosecution of a newly elected President’s National Security Advisor and the shocking facts that surround it," she wrote. "Only the FBI agents lied—and falsified documents. The crimes are theirs alone."

Powell also buttered up Sullivan, calling him a "judicial hero," and she seemed to offer a veiled suggestion that Obama or his allies may soon wind up imprisoned themselves. "Perhaps you will soon find some remarkably good 'jailhouse lawyers' to consult for further assistance on your search for precedent," the defense attorney wrote.

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