Is This Why the Judge Presiding Over the Flynn Case Is Allowing Amicus Briefs from Anti-Trump Lawyers?

Posted: May 14, 2020 3:07 AM
Is This Why the Judge Presiding Over the Flynn Case Is Allowing Amicus Briefs from Anti-Trump Lawyers?

Source: AP Photo/Susan Walsh

Justice for Michael Flynn has hit another snag. Judge Emmet Sullivan is ensuring that every method to legally slow down this case is utilized. I mean, there is no case. No one has opposed the motion to dismiss the charges lobbed against Flynn, who pleaded guilty to politically motivated “lying to the FBI” charges. The ex-national security adviser for President Trump was forced to plead guilty after the government threatened him and his family with financial ruin. Alas, new documents show that Flynn was the victim of an entrapment plot from the FBI’s top brass. James Comey was out to get Flynn by any means necessary. There was no basis to interview Flynn regarding the bureau’s counterintelligence probe into Russian collusion. There was no basis for him to be interviewed for any federal investigation; they had no evidence. Still, Flynn was interviewed by agents who said they didn’t think he lied to them. Comey didn’t care. He wanted a scalp, and now that dirty cop operation has been exposed. The Department of Justice filed a motion to drop the case. No party involved has opposed it. And yet, Judge Sullivan refused to drop the case and proceeded to invite the entire anti-Trump legal apparatus to file amicus briefs against the DOJ’s motion. The New York Sun’seditorial board has an idea for why Sullivan is doing this, which The Wall Street Journal cited in their op-ed. Sullivan is playing for time for a Democrat to win the 2020 election and then have a Biden DOJ drop the motion to dismiss the charges against Flynn. It’s speculation but given the breadth of the anti-Trump deep state and how far they will go to attack this White House, nothing is too crazy to consider. Remember it was nuts to think that Flynn was the victim of an FBI plot [emphasis mine]:

The decision of a United States judge to stall America’s motion to drop its case against General Michael Flynn appears calculated to delay the matter until after November. That’s how it looks, at least to us, in the wake of the judge’s decision to invite outside parties to file friend-of-the court briefs on what to do next. Could it be that the judge hopes the Democrats will win the election and, come January, drop the motion to drop the case?

In offering that line of speculation — and that’s all it is — we do not intend to question the integrity of the judge, Emmet Sullivan. We see as long-overdue and courageous Attorney General Barr’s decision to move to dismiss the case against General Flynn. The judge, though, has had a long and distinguished career on the bench. He was elevated to his several judgeships by Presidents Reagan, George Bush ’41, and Clinton.

Nor was it was ever, in our view, a foregone conclusion that the judge would grant America’s motion to end the case against the general, even if the betting around the courthouse is that the judge, in the long run, has few options but to grant the motion. After all, there is no longer an actual case or controversy, which is the only thing the Constitution grants the courts the power to decide.

Note, though, our caveat “in the long run.” What Judge Sullivan did today was issue a written order saying the court “anticipates that individuals and organizations will seek leave of the Court to file amicus curiae briefs” in the case. He must have been reading the op-ed pages. His order is practically an engraved invitation to the entire industry devoted to destroying the Trump presidency to pile on against the general.

The Wall Street Journal also commented on Sullivan’s actions, who now has appointed a retired judge, John Gleeson, to review the DOJ’s motion and look into whether Flynn could be charged, with get this—perjury. This was a sideshow attraction and now the circus has come to town. With such damning evidence of prosecutorial misconduct, the publication said Sullivan’s actions were disappointing for a judge who upheld a strong Brady standard, as should all members of the bench:

If the prosecution and defense both want to drop a case, can a federal judge refuse and sentence the defendant anyway? The easy call should be no, which makes all the more bizarre federal Judge Emmet Sullivan’s decision Tuesday to invite outside briefs in the Michael Flynn case.


This is a criminal case subject to normal rules of evidence that were clearly violated by Mr. Mueller’s prosecutorial team. Our friends at the New York Sun speculate that Judge Sullivan may want to keep the prosecution going for months so a Biden Justice Department could revive it. We hope that’s wrong, though we do recall that Judge Sullivan some months back in open court asked prosecutors if Mr. Flynn might have been charged with “treason.”

One issue here is the role of a judge in the U.S. system, which is to adjudicate cases and controversies, not to supplant the prosecutorial duty of the executive branch. There’s also the matter of simple fairness. Mr. Flynn has endured three years of public trial because he was caught up in the Russia collusion allegations that turned out to be based on nothing more than Russian disinformation.


Judge Sullivan’s judgment is all the more disappointing because he has enjoyed a reputation for holding prosecutors accountable for their obligation to turn over Brady material—evidence that could be exculpatory—to the defense. If Judge Sullivan insists on Mr. Flynn’s continued prosecution even as prosecutors conclude the facts don’t support it, he will likely to be overturned on appeal.

Liberal lawyer Jonathan Turley found this move by the judge “unnerving,” given the documented evidence of DOJ overreach:

And Flynn a clear victim continues to wait for final vindication. It’s terrible. The man was crucified for doing his job and making phone calls, but he worked for Trump which painted a target on his back. 

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