A federal judge appeared to give a long list of outside groups who previously weighed in on the Justice Department’s motion to drop the case against retired Lt. Gen. Michael Flynn permission to submit briefs again after President Trump issued a pardon.
The schedule indicates the judge, Emmet Sullivan, may stall on dismissing the case even after President Trump granted his former national security adviser a full pardon late last month. Appearing to ignore the Justice Department’s request for the case “immediately” to be dismissed, the judge, who has been involved in the Flynn case since December 2017, instead seemed to move forward with further debate, with the district court docket on Monday showing more than a dozen groups who had previously filed amicus briefs related to the dismissal might now be able to weigh in in the wake of the pardon.
More than a dozen such friend-of-the-court judicial orders from Sullivan were dated for Monday.
“The President granted General Flynn ‘a full and unconditional pardon’ for (1) the charge of making false statements to Federal investigators … (2) any and all possible offenses arising from the facts set forth in the Information and Statement of Offense … (3) any and all possible offenses within the investigatory authority or jurisdiction of the Special Counsel … and (4) any and all possible offenses arising out of facts and circumstances … related to the investigation of the Special Counsel,” the Justice Department told the court at the end of November, adding that “no further proceedings are necessary or appropriate, as the Court must immediately dismiss the case with prejudice.”
Trump announced the Flynn pardon the day before Thanksgiving, tweeting, “It is my Great Honor to announce that General Michael T. Flynn has been granted a Full Pardon.”
Flynn, 61, fought to dismiss the government’s case against him this year after he pleaded guilty in December 2017 to lying to investigators about his intercepted December 2016 conversations with Russian Ambassador Sergey Kislyak.
Sullivan’s granting of the friend-of-the-court filings instead of just dismissing the case suggests he may drag the proceedings out until President-elect Joe Biden takes office and beyond.
On Friday, fellow U.S. District Judge Reggie Walton, who is handling a Freedom of Information Act case related to special counsel Robert Mueller’s investigation, opined that Sullivan might choose to scrutinize Flynn’s pardon. Walton said he didn’t believe Sullivan “has a lot of options in reference to what he does … unless he takes the position that the wording of the pardon is too broad,” according to the National Law Journal, adding, “theoretically, the decision could be reached because the wording in the pardon seems to be very, very broad. It could be construed, I think, as extending protections against criminal prosecutions after the date the pardon was issued.”
Sullivan’s new orders seemed to allow multiple groups, roughly half of which support dismissal and half who oppose it, to provide their thoughts.
The National Association of Criminal Defense Lawyers, the Uniformed Services League, a bipartisan group of attorneys, Citizens United, and Ohio Attorney General Dave Yost, along with 14 other states, had all weighed in in favor of the judge granting the Flynn dismissal.
Democratic members of the House Judiciary Committee, 17 individuals who served in the Justice Department’s Watergate Special Prosecution Force, a group called the Separation of Powers Scholars, a group of 1,187 former Justice Department officials, another group called The Steady State comprised of former national security officials, and a group of criminal law professors had argued against the judge dropping the case.
Flynn told the court in January that he was “innocent of this crime” and filed to withdraw his guilty plea. The Justice Department later moved to drop the charges in May, following a deep-dive review by U.S. Attorney for the Eastern District of Missouri Jeffrey Jensen. The DOJ said that “continued prosecution of this case would not serve the interests of justice.”
Instead, Sullivan, an appointee of President Bill Clinton, appointed retired New York judge John Gleeson to present arguments in opposition to the Justice Department’s motion and to explore whether Flynn should be charged with perjury or contempt.
Flynn’s lawyers, led by Sidney Powell since last summer, argued in October that Sullivan’s “increasingly hostile and unprecedented words and deeds in what has become his own prosecution of General Flynn mandate his disqualification.” Acting Solicitor General Jeff Wall said in August that the Justice Department “reluctantly” believed that Sullivan might need to be removed because he seemed to have “prejudged” some of the questions in the case.
