Ken Starr Backs Move to Drop Charge Against Ex-Trump Adviser Flynn

Ken Starr, an attorney for President Donald Trump, speaks during Trump’s impeachment trial in the Senate on Jan. 27, 2020. (Senate Television via AP)

WASHINGTON (CN) — Legal heavyweights joined the fray over the prosecution of Michael Flynn on Friday, as a cohort of retired judges and Kenneth Starr, famous for his role in both the Clinton and Trump impeachments, filed opposing briefs on the Justice Department abruptly dropping the case against the former national security adviser.

Starr joined 28 former prosecutors, government attorneys and judges in signing an amicus brief that says U.S. District Judge Emmet Sullivan has no authority to delay granting the government’s motion to dismiss.

“The court is never a partisan for either the prosecution or the defense; it must never assume the mantle of prosecutor or defense counsel,” according to the brief, which is signed by Washington lawyer Leslie McAdoo Gordon. “Moreover, the separation of powers precludes the court from exercising executive powers.”

Judge Sullivan has opened the door for outside parties to weigh in on the Justice Department’s abrupt reversal, while also assigning a retired federal judge to argue against the motion to dismiss. Flynn, meanwhile, recently petitioned the D.C. Circuit to force Sullivan’s hand, then appoint a new judge on the case. 

In the investigation led by special counsel Robert Mueller of 2016 election meddling, the case against the former national security adviser to President Donald Trump had been one of the early success stories. Flynn tendered two guilty pleas, only to withdraw them ahead of sentencing. The Justice Department for its part now says it no longer finds Flynn’s false statements to the FBI about his contacts with Russia to be materially false.

Among other amicus curiae briefs that the case has incurred is one last week from 16 former Watergate prosecutors who bemoaned the government’s failure to address the possibility that the dropping the case might be seen as political. A group of red states offered a competing view the same day that Sullivan has acted unconstitutionally. 

Starr helped convicted sex offender Jeffrey Epstein secure a lenient sentence last year before going on to serve as defense counsel to President Donald Trump in the Senate impeachment trial. Decades prior, the attorney played a pivotal role in impeachment history when he headed the investigation that led to the impeachment of President Bill Clinton.

Along with his co-filers, Starr now argues that Judge Sullivan has overlooked what they called exculpatory information found by U.S. Attorney Jeffrey Jensen, whom Attorney General William Barr tapped to investigate the prosecution. 

The records reveal an unnamed official debating whether to show Flynn evidence against him during a 2017 interview with the FBI where Flynn ultimately lied about his conversations with Russian ambassador Sergey Kislyak on U.S. sanctions imposed by the Obama White House over election interference.

For defense counsel, the records amount to a smoking gun that Flynn was cornered into a perjury trap. In withdrawing his plea, Flynn now alleges “egregious government misconduct.”

Thursday’s brief calls what happened a textbook Brady violation, referring to the 1963 U.S. Supreme Court case that says prosecutors have a duty to disclose exculpatory information to defendants.

“There is simply no way that Gen. Flynn could have known or uncovered these facts, which undermined an essential element of the charge against him, without the government providing them to him,” the brief states. 

Another Supreme Court case referenced in Thursday’s brief is Rinaldi v. United States, which says the decision to prosecute is generally left to the “absolute discretion” of the Justice Department.

“The court has cautioned that ‘the decision to prosecute is particularly ill-suited to judicial review,’” the brief states, quoting the 1977 ruling that further finds factors such as the strength of the case and its relationship to the government’s overall enforcement plan to be “not readily susceptible to the kind of analysis the courts are competent to undertake.”

But more than a dozen former federal district judges argued in their own amicus brief to the D.C. Circuit just hours later that Sullivan’s role is not merely “ministerial.” The judge should examine the “unusual lack of adversity” in the government’s shocking reversal in the case, they reason, while urging the court to reject Flynn’s petition.

“To require a district court to simply dismiss a criminal case, without further inquiry, when the judge believes or suspects that doing so may undermine public confidence in the equal and impartial administration of justice, would be ‘abhorrent’ indeed,” the brief states.

With centuries of combined legal experience, the retired jurists argued that the framers knew that the “independent spirit” of district judges was essential.

“The ‘inevitable tendency’ of capricious law enforcement ‘is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and Distress,’” the brief states. “Only independent federal courts can prevent such ‘nonuniform’ enforcement by the Executive Branch, which ‘risks undermining necessary confidence in the criminal justice system.’”

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