The legal team for retired Lt. Gen. Michael Flynn criticized the judge’s openness to considering “amicus” filings in the case following the Justice Department’s motion to drop the charges against the former Trump national security adviser.
Sidney Powell, a former federal prosecutor who took over representation for Flynn last summer, expressed her displeasure with Judge Emmet Sullivan’s Tuesday order, which indicated his willingness to review friend-of-the-court filings from interested outside parties as he decides what to do next rather than allowing the Justice Department to dismiss the case as it has requested.
She filed a six-page motion Tuesday evening opposing any outside intervention in the case, stating that a group that dubbed itself “Watergate Prosecutors” had moved to file an amicus brief on Monday. She said, “This Court has consistently — on 24 previous occasions — summarily refused to permit any third party to inject themselves or their views into this case.” Powell argued that “the proposed amicus brief has no place in this Court.”
“No rule allows the filing, and the self-proclaimed collection of ‘Watergate Prosecutors’ has no cognizable special interest,” Flynn’s team said. “Separation of powers forecloses their appearance here. Only the Department of Justice and the defense can be heard.”
Powell told the Washington Examiner that the judge had denied all previous third-party interventions “until DOJ moves to dismiss and begins to expose the wrongdoing of the Obama administration.”
Flynn’s lawyers have touted recently released FBI records as being exculpatory evidence that was concealed from the defense team. The documents suggest that now-fired FBI agent Peter Strzok and the FBI’s “7th floor” leadership stopped the bureau from closing its investigation into Flynn in early January 2017, even though investigators had uncovered “no derogatory information,” after intercepts of Flynn’s communications with a Russian envoy emerged. Emails from later that month show Strzok, along with then-FBI lawyer Lisa Page and several others, sought out ways to continue investigating Flynn, including by deploying the Logan Act.
In his Tuesday order on the court’s online docket, Sullivan said that “given the current posture of this case, the Court anticipates that individuals and organizations will seek leave of the Court to file amicus curiae briefs.” He quoted Judge Amy Berman Jackson, who presided over the case against Trump associate Roger Stone, saying that “while there may be individuals with an interest in this matter, a criminal proceeding is not a free for all.” Sullivan said that “accordingly, at the appropriate time, the Court will enter a Scheduling Order governing the submission of any amicus curiae briefs.”
The move appears to be a departure from how Sullivan has treated amicus brief requests in the Flynn case prior to this. In December 2017, Sullivan denied multiple motions for leave to file various friend-of-the-court filings.
“This Court has received several motions to intervene/file an amicus brief along with letters in support from a private individual who is neither a party to this case nor counsel of record for any party,” Sullivan said in a docket order at the time. “The Federal Rules of Criminal Procedure do not provide for intervention by third parties in criminal cases … Options exist for a private citizen to express his views about matters of public interest, but the Court’s docket is not an available option.”
Sullivan added that “the docket is the record of official proceedings related to criminal charges brought by the United States against an individual who has pled guilty to a criminal offense” and “for the benefit of the parties in this case and the public, the docket must be maintained in an orderly fashion and in accordance with court rules.” None of the amicus filings were allowed to appear on the docket.
The public docket shows that Sullivan shot down multiple more amicus filing requests in January, February, March, and November of 2019.
Powell told the judge that “this travesty of justice has already consumed three or more years of an innocent man’s life” and that “no further delay should be tolerated.” She said the case should be dismissed immediately.
Earlier this week, a letter was released that was signed by a purported 2,000 former DOJ and FBI officials opposing the Trump administration’s decision to drop the case against Flynn.
“We urge Judge Sullivan to closely examine the Department’s stated rationale for dismissing the charges — including holding an evidentiary hearing with witnesses — and to deny the motion and proceed with sentencing if appropriate,” the former officials said.
Benjamin Wittes, the editor of Lawfare and a longtime friend of fired FBI Director James Comey, celebrated Sullivan’s openness to outside amicus filings.
“Well, this is interesting,” he tweeted. “I suspect the 2,000 or so former Justice Department officials who have vociferously objected to the department’s position in this case might just manage to find counsel for an amicus brief.”
Timothy Shea, the U.S. attorney for the District of Columbia, formally filed the Justice Department’s motion to dismiss the case against Flynn on Thursday.
“The United States of America hereby moves to dismiss with prejudice the criminal information filed against Michael T. Flynn,” Shea said. “The Government has determined … based on an extensive review and careful consideration of the circumstances, that continued prosecution of this case would not serve the interests of justice.”
Jeffrey Jensen, the U.S. attorney for the Eastern District of Missouri who was picked by Attorney General William Barr to review the Flynn case earlier this year, said Thursday that he “concluded the proper and just course was to dismiss the case” and advised Barr on his conclusions.
Powell took over Flynn’s representation from Covington & Burling LLP, at whose guidance Flynn had pleaded guilty in December 2017 to lying to investigators about his conversations with Russian diplomat Sergey Kislyak. The U.S. government intercepted Flynn’s discussions with Kislyak, after which Strzok and another agent, believed to be Joseph Pientka, grilled him on the contents of the conversation on Jan. 24, 2017. Comey made it clear that he took advantage of the chaos of the early days of the Trump administration to make that interview happen, even as Deputy Attorney General Sally Yates opposed Comey’s actions.
“The Government is not persuaded that the January 24, 2017 interview was conducted with a legitimate investigative basis and therefore does not believe Mr. Flynn’s statements were material even if untrue,” Shea said in his court filing. “Moreover, we not believe that the Government can prove either the relevant false statements or their materiality beyond a reasonable doubt.”
Democratic House Judiciary Chairman Jerry Nadler called the Justice Department’s decision to drop its charges against Flynn “outrageous.”
Barr defended the move by his agency during an interview with CBS News’s Catherine Herridge.
“I think a fair history would say that it was a good decision because it upheld the rule of law. It helped, it upheld the standards of the Department of Justice, and it undid what was an injustice,” Barr said on Thursday, adding, “I mean, it’s not gonna be the end of it … We’re gonna get to the bottom of what happened.”
