WASHINGTON (CN) — Sixteen former Watergate prosecutors and a group of red states offered the D.C. Circuit competing views Friday on whether it should force a federal judge to dismiss the criminal case against former national security adviser Michael Flynn.
The brief comes as Flynn asks the appeals court to direct U.S. District Judge Emmet Sullivan to abandon his earlier order delaying a ruling on the Justice Department’s request to dismiss the case until he hears from outside voices opposed to the abrupt reversal.
Deeming both the government’s move to drop the charges and Flynn’s ask of the D.C. Circuit “extraordinary,” the former Watergate prosecutors say the Justice Department asked to drop the Flynn case “without so much as addressing” the possibility that the decision would be seen as entirely political.
Considering the politically charged nature of the prosecution and the fact that Flynn has pleaded guilty to the charges against him, the prosecutors argue the case is ripe for a voice from the outside to help Sullivan reach his decision.
“Here, the substance of the government’s motion departs so dramatically from settled legal principles and traditional prosecutorial norms as to suggest that it was tailor-made for this particular politically connected defendant — and, as such, constitutes ‘a restricted railway ticket, good for this day and train only,'” the prosecutors argue in their friend-of-the-court brief, quoting Justice Owen Roberts’ dissent in the 1944 Supreme Court case Smith v. Allwright.
They call the suggestion that Sullivan overstepped his authority by calling for outside voices “absurd” and beat back arguments that the FBI had no reason to conduct the interviews that form the basis of the case against Flynn.
“It defies comprehension to suggest that an incoming national security advisor, whom Russia knew to have misled both the vice president and press secretary about his conversations with the Russian ambassador to the United States, should not have been interviewed by federal agents concerned about the possibility of potential Russian blackmail,” the brief states.
Sullivan has appointed retired judge John Gleeson to argue against dismissing the case, a decision that has drawn accusations from Flynn’s defenders both in and outside the courtroom. In petitioning the D.C. Circuit to reject Sullivan’s decision, Flynn attorney Sidney Powell said the appointee of President Bill Clinton “revels in the notoriety” that came with the decision.
“This is an umpire who has decided to steal public attention from the players and focus it on himself,” Flynn’s petition states. “He wants to pitch, bat, run bases and play shortstop. In truth, he is way out in left field.”
On the same day the Watergate prosecutors filed their views with the court, 16 red states filed a brief arguing the opposite. Sullivan, the states argue, “is acting unconstitutionally” with his order for additional briefing and refusal to immediately dismiss the case, as he is taking up an authority reserved only for the executive branch.
“When the executive branch decides not to prosecute, the proper role of the judiciary is to immediately grant the government’s motion to dismiss,” the 23-page brief states. “By failing to do so, and by instead appointing an amicus curiae to prosecute General Flynn, the district court exceeded its lawful authority and undermined our constitutional order.”
Led by Ohio, the states say the decision to drop the Flynn case was an act of prosecutorial discretion — a sensitive policy judgment only the executive branch is equipped to make.
They argue the rule allowing prosecutors to dismiss an indictment only “with leave of court” gives judges “a merely ministerial role” in the process, installing courts has a check against abusive prosecution techniques. Sullivan’s move goes beyond that limited role and effectively compels Flynn’s prosecution, the states say.
Sullivan has set arguments in the motion to dismiss Flynn’s case for July 16. Flynn pleaded guilty to lying to the FBI, but has since moved to withdraw the plea on the basis of “egregious government misconduct.”