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The Justice Department has dropped its case against former National Security Adviser Michael Flynn and President Donald Trump has pardoned him, but the federal judge who oversaw the case had a hard time letting it go.
U.S. District Judge Emmet Sullivan on Monday “granted a lineup of requests to file friend-of-the-court (amicus) briefs in the wake of” President Trump “granting a pardon” to Flynn, Courthouse News Service correspondent Megan Mineiro wrote on Twitter, with screen grabs of the judge’s orders.
Sullivan’s allowance of the amicus briefs comes after another federal judge, Reggie Walton, said that his colleague may find that “the wording of” Trump’s “pardon is too broad.”
Judge Sullivan on #Flynn's case just granted a lineup of requests to file friend-of-the-court briefs in the wake of Trump granting a pardon to the former national security adviser. pic.twitter.com/16BipvH8ZZ
— Megan Mineiro (@meganmineiro) December 7, 2020
But by Tuesday, Sullivan must have had a change of heart, as he issued an order dismissing the Justice Department’s case to get the Flynn charge throughout as “moot.”
BREAKING: Judge Sullivan dismisses the FLYNN case, declaring it moot after the Trump pardon. pic.twitter.com/WDRtrqhVIS
— Kyle Cheney (@kyledcheney) December 8, 2020
Walton had noted that he doesn’t believe Sullivan “has a lot of options in reference to what he does” following the pardon, that may change if “he takes the position that the wording of the pardon is too broad, in that it provides protections beyond the date of the pardon.”
“I don’t know what impact that would have, what decision he would make, if he makes that determination that the pardon of Mr. Flynn is for a period that the law does not permit. I don’t know if that’s correct or not,” Walton said, the National Law Journal reported.
“I don’t know if Judge Sullivan will make that determination or not,” Walton said during a public records case regarding FBI interviews related to former special counsel Robert Mueller’s probe of alleged collusion between the 2016 Trump campaign and Russia.
Mueller’s investigation never found any evidence of that.
CNN and Buzzfeed News are seeking records from the FBI’s interviews during the Mueller probe now that the pardon has been issued.
In January, Flynn, through his attorney Sidney Powell, moved to rescind a 2017 guilty plea that he lied to FBI agents.
He reiterated his guilty plea at a sentencing hearing on Dec. 18, 2018, but he pulled out of it after Sullivan appeared set to hand down a sentence that included jail time, in violation of an agreement he made to cooperate with Mueller and federal investigators.
Flynn would go on to say he copped a plea because Mueller’s prosecutors were threatening to charge his son as well.
Trump’s pardon “goes beyond Flynn’s single false statement charge and broadly exonerates him of a wide range of additional criminal charges that could possibly be brought once President-elect Joe Biden takes office,” Courthouse News Service reported late last month.
A statement from the Justice Department added that the pardon also protects Flynn from “any possible future perjury or contempt charge in connection with General Flynn’s sworn statements and any other possible future charge that this Court or the court-appointed amicus has suggested might somehow keep this criminal case alive over the government’s objection.”
When the government moved earlier this year to drop its case against the former Defense Intelligence Agency chief, the DoJ said it no longer found Flynn’s previous statements to FBI agents in January 2017 to be “materially false.”
But Sullivan has refused to let the case go.
In May, he issued a ruling seeking friend-of-the-court briefs from anyone who wanted to argue that legal action against Flynn should still be pursued.
His instructions were criticized by constitutional law experts including Georgetown Law School professor Jonathan Turley.
“Judge Sullivan was previously criticized for suggesting that Flynn could be charged with treason. He is now allowing third parties to make arguments in a criminal case on an unopposed motion. In addition, he is exploring a charge that he might be able to bring against Flynn,” he wrote on Twitter.
“These extraordinary moves by the court are increasingly discomforting. This is a single charge where significant jail time was neither warranted nor expected,” adding “there comes a point where the Court appears too invested in the punishment of a defendant and too active in creating alternatives to dismissal.”
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