Judge refuses to dismiss Flynn’s case, yet, solicits 3rd party input; attorneys fire back immediately

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The judge overseeing the case of fired national security advisor Mike Flynn has come under fire after issuing an “unusual” order allowing outside parties to weigh in on the case before ruling on a dismissal.

D.C. District Court Judge Emmet Sullivan issued an order Tuesday indicating he will soon accept “amicus curiae,” or “friend of the court” submissions, in the case, though he had previously refused to hear amicus briefs in the case, Fox News reported.

“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,” Sullivan said in the order, adding that he will “enter a Scheduling Order governing the submission of any” such briefs at “the appropriate time.”

In effect, the judge is refusing to dismiss the case after federal prosecutors moved to withdraw its charges and Flynn has withdrawn his guilty plea — Sullivan had already accepted Flynn’s initial plea. On Tuesday, Flynn’s legal team moved to have the case dismissed “immediately.”

Instead, Sullivan will accept recommendations on whether he should dismiss the case from people and groups not involved in the case.

“This travesty of justice has already consumed three or more years of an innocent man’s life — and that of his entire family,” Flynn’s attorneys wrote. “No further delay should be tolerated or any further expense caused to him and his defense. This Court should enter the order proposed by the government immediately.”

The team also noted that “this Court has consistently — on twenty-four (24) previous occasions — summarily refused to permit any third party to inject themselves or their views into this case.”

The defense attorneys said in a filing Tuesday a sealed amicus brief has already been submitted by a left-wing group known as the “Watergate Prosecutors,” urging Sullivan not to toss out Flynn’s guilty plea despite the Justice Department’s request, Fox News reported.

“No rule allows the filing, and the self-proclaimed collection of ‘Watergate Prosecutors’ has no cognizable special interest, Flynn’s attorneys said. “Separation of powers forecloses their appearance here. Only the Department of Justice and the defense can be heard. Accordingly, the Watergate Prosecutors’ attempted filing itself should not be registered on the docket, and any attempt by the group or any individual to make a filing in this case must be denied—as all others have been.”

Flynn team’s argued that third parties should not be allowed to “usurp” the role of the federal prosecutor.

“It is no accident that amicus briefs are excluded in criminal cases,” they wrote. “A criminal case is a dispute between the United States and a criminal defendant. There is no place for third parties to meddle in the dispute, and certainly not to usurp the role of the government’s counsel. For the Court to allow another to stand in the place of the government would be a violation of the separation of powers.”

Independent journalist Michael Cernovich announced on Twitter Tuesday evening that he was filing an ethics complaint against Sullivan.

“Judge Sullivan, who denied leave to file amicus briefs when he knew third parties would have spoken favorably of Flynn, now solicits briefs critical of Flynn,” he wrote. “This is a violation of the judicial oath and applicable ethical rules. We will be filing a complaint against Sullivan.”

Fox News reported there was already movement on Cernovich’s ethics complaint, and that he may be filing his own amicus brief.

As for the “Watergate Prosecutors,” President Trump retweeted the following tweet from Twitter user Techno Fog:

Sean Davis, co-founder of The Federalist, tweeted: “This is who Emmet G. Sullivan, the judge in Flynn’s case, is allowing to hijack a case which both the defense and the government prosecution wish to dismiss because the case was tainted by corruption from the beginning. Pathetic.”

https://twitter.com/seanmdav/status/1260382513232523265?s=20

Fox News pointed to Flynn’s “fireworks-filled sentencing hearing” in December 2018, reporting that Sullivan appeared open to the idea that Flynn could be charged with a death penalty-eligible offense.

“I’m not hiding my disgust, my disdain for this criminal offense,” Sullivan said at the hearing, telling Flynn at one point, “Arguably you sold your country out.”

In what the network describes as “a bizarre moment,” Sullivan asked prosecutors if that had considered charging Flynn with treason — the judge was forced to walk the controversial remark back after a brief recess.

Tom Tillison

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