NY Bar Association Opposes Move to Drop Case Against Flynn

Groups and people on both sides of the aisle have jumped at the opportunity to file friend-of-the-court briefs in the politically charged case.

Michael Flynn, President Donald Trump’s former national security adviser, leaves federal court in Washington on Sept. 10, 2019. (AP Photo/Manuel Balce Ceneta)

WASHINGTON (CN) — Opinions continue to mount on whether the federal judge in Michael Flynn’s case should green-light the Justice Department dropping the prosecution against the former national security adviser, as the legal battle gears up for arguments this summer. 

The New York City Bar Association was the first party to weigh in Monday morning, filing an amicus brief that argued U.S. District Judge Emmet Sullivan was well within his judicial power to carefully consider the government’s motion to dismiss. 

“The Association has sought this Court’s leave to file this brief because it believes the district court’s action is important to vindicate the impartial workings of our judicial system in connection with a case that, as discussed below, raises serious public concern about the fair administration of justice in a case involving a senior government officer and close associate of the president of the United States,” the brief states. 

Flynn had twice pleaded guilty to lying to the FBI before withdrawing the plea and accusing the government of prosecutorial misconduct. Last month, the Justice Department moved to drop the case after three years, setting off a fiery legal battle now raging in Washington. Sullivan, a Bill Clinton appointee, has set district court arguments on the motion for mid-July.

Three more briefs hit the heavy-traffic docket throughout the day, from Senate Majority Leader Mitch McConnell, GOP congressmen and a former Reagan attorney general.  

Urging the D.C. Circuit to deny Flynn’s petition to force the district judge to grant the motion to dismiss, the New York City Bar first argued mandamus relief is a “drastic and extraordinary” remedy “reserved for really extraordinary causes,” citing the Supreme Court decision in Cheney v. United States District Court

“Under these circumstances,” the brief states, “the district court’s action to vindicate that essential public interest is well within the sound exercise of its discretion and should be respected by this court.” 

Less than two hours later, Edwin Meese, former attorney general under President Ronald Reagan, filed his own brief along with the Conservative Legal Defense and Education Fund in support of Flynn. 

The conservatives’ brief highlights an indelible moment between Flynn and Sullivan in 2018, when the judge said to the defendant in open court, “Arguably, you sold your country out.” 

Meese argued that the motion to dismiss was unusual, but not extraordinary, and that it is Attorney General William Barr’s responsibility to “terminate a baseless prosecution in the interest of justice.”

He also took aim at several briefs filed in recent weeks that backed Sullivan and argued Flynn’s petition to the D.C. Circuit raised grave rule of law issues.

“This is a most remarkable claim for a court system whose job is to ‘say what the law is’ and only, then, with respect to cases and controversies. The duty of courts is not to ‘foster public confidence,’ but to administer the law impartially,” the brief states.

Sixteen former Watergate prosecutors filed their own brief last month. They argued that considering the politically charged nature of the case, Sullivan was right to appoint a retired federal judge to argue against the government’s motion. 

Quoting former Supreme Court Justice Robert Jackson, they urged the D.C. Circuit to remember that “the safety of both citizens and of the republic ‘lies in the prosecutor who . . . serves the law and not factional purposes.’”

But Meese took direct aim at the Watergate prosecutors’ reliance on Jackson, who before taking the bench served as attorney general under President Franklin Roosevelt. 

Ceding that Jackson recognized prosecutorial power can at times act “from malice or other base motives,” the conservatives’ brief pressed their claim that the sole power to litigate the false-statement charge against Flynn lies with Barr. 

“Some of the amicus briefs filed herein erroneously would entrust that power exclusively in the federal judiciary,” the brief states. “In truth, in the first instance, that responsibility and power is vested in the attorney general of the United States.”

Eleven GOP members of the U.S. House of Representatives filed a third amicus brief as Monday drew to a close. The conservative congressmen slammed Sullivan for allegedly abandoning neutrality in the case. 

“Judge Sullivan’s orders in this case, like his public statements (such as his inquiry as to why General Flynn was not charged with ‘treason’) eliminate, at a minimum, the appearance of his impartiality,” the brief states. “Those orders should be reversed. This matter should be assigned to a trial court judge who is, and who appears to be, a neutral decisor between the parties to this case.”

The GOP members further argue that when Congress created the Department of Justice it vested all power in the attorney general to control criminal cases. 

Leader McConnell reinforced his party colleagues’ argument in the final brief filed Monday evening, joined by Republican Senators Tom Cotton, Mike Braun, Kevin Cramer, Ted Cruz, Charles Grassley and Rick Scott. 

“The Federal Rules of Criminal Procedure cannot override the Constitution’s framework, and nothing in those rules allows a court to take the prosecutorial reins or to appoint a private party to step into the prosecution’s shoes,” the senators’ brief states.

In a departure from the majority of amicus briefs that have focused on the case record, McConnell looked to the future, questioning how Flynn’s sentencing would play out if Sullivan were to deny the motion to dismiss. 

“Thus, if this case proceeds to sentencing, the defendant will appear in court, ready to be sentenced —with the district court itself as the only government official standing against him. That result would not only violate the separation of powers, but would undermine the entire design of a sentencing hearing,” the brief states, arguing sentencing hearings are not merely for the purpose of the judge to carry out his duty, but a critical stage of the criminal process.  

Parties from the left and right have jumped at the opportunity to file friend-of-the-court briefs in the case in recent weeks, including Kenneth Starr, famous for his pivotal role in both the Clinton and Trump impeachments, and more than a dozen former federal district judges. 

Lawyers Defending American Democracy has warned the D.C. Circuit that Flynn’s petition threatens public confidence in the justice system, while a coalition of red states put forward the competing view that Sullivan has acted unconstitutionally. 

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