The Department of Justice on Monday unloaded on the antics of the rogue federal judge overseeing the Michael Flynn trial, accusing him of usurping the constitutional authority of the executive branch to make prosecutorial decisions and ignoring both statutory law and federal court precedent requiring him to dismiss the case against Flynn.
After Judge Emmet G. Sullivan refused to grant the unopposed DOJ motion to dismiss the charges against Flynn after the government unearthed and relevant reams of evidence that the government had abused its power and unlawfully targeted Flynn, Flynn’s attorney Sidney Powell filed a writ of mandamus with the U.S. Court of Appeals for the District of Columbia asking it to order the trial court to dismiss the charges against Flynn. The appellate court ordered Sullivan to respond by close of business on June 1 and invited DOJ to file its own response as well.
In a sign of how important DOJ views the underlying constitutional issues in the case, the formal brief to the appellate court wasn’t just signed by the line attorney managing the government’s case. Instead, it was signed by Noel J. Francisco, the Solicitor General of the United States who is tasked with representing the U.S. government in the most important appellate cases across the country; Brian A. Benczkowski, the Assistant Attorney General and head of DOJ’s entire criminal division; Deputy Solicitors General Jeffrey B. Wall and Eric J. Feigin; assistants to the Solicitor General Frederick Liu and Vivek Suri; Michael R. Sherwin, the acting U.S. Attorney for the District of Columbia; Kenneth C. Kohl, the acting Principal Assistant United States Attorney for D.C.; and Jocelyn S. Ballantine, the line prosecutor handling the Flynn case at trial.
“The Constitution vests in the Executive Branch the power to decide when—and when not—to prosecute potential crimes,” DOJ argued in its brief. Rules of federal criminal procedure, cited by Sullivan in support of his gambit to appoint himself both judge and prosecutor in the inquisition against Flynn, “do not authorize a court to stand in the way of a dismissal the defendant does not oppose, and any other reading of [those rules] would violate both Article II and Article III” of the constitution, DOJ wrote.
“Nor, under the circumstances of this case, may the district court assume the role of prosecutor and initiate criminal charges of its own,” the brief continued. “Instead of inviting further proceedings the court should have granted the government’s motion to dismiss.”
In their brief to the appellate court detailing the facts of the Flynn case, Francisco and the other DOJ attorneys noted that prior to the Federal Bureau of Investigation’s (FBI) ambush interview of Flynn on January 24, 2017, “the FBI identified no ‘derogatory information’ about petitioner and determined that he ‘was no longer a viable candidate’ for investigation.”
“In early January 2017, the FBI stated in a draft internal memorandum that it was ‘closing [its] investigation’” of Flynn, the attorneys wrote.
Although Flynn initially pleaded guilty to charges of making false statements to FBI investigators about his phone conversations with Russian ambassador Sergei Kislyak, he later sought to withdraw his plea after firing his original defense attorneys, who had an unwaivable conflict of interest in representing Flynn that they never disclosed, and hiring Sidney Powell, his current defense counsel. An investigation by U.S. Attorney for Missouri Jeff Jensen, which was ordered by Attorney General William Barr, unearthed significant exculpatory evidence that former Special Counsel Robert Mueller’s office unlawfully withheld from Flynn and his legal team. Following the discovery and release of that evidence, which included transcripts of Flynn’s calls and handwritten notes from a top FBI official admitting that a major goal of the investigation of Flynn was to “get him fired,” DOJ filed a motion to dismiss the charges against Flynn in their entirety. The motion was unopposed by Flynn.
Sullivan, who at one point accused Flynn, a decorated military combat veteran, of being a traitor to his country, refused to dismiss the charges and instead appointed John Gleeson, a former federal judge, to make arguments to the court about why the unopposed motion to dismiss charges should be denied. Days before Gleeson was appointed by Sullivan, Gleeson co-authored a Washington Post column calling on Sullivan to deny DOJ’s motion to dismiss the Flynn charges. Sullivan also asked Gleeson to provide the trial court with arguments to support new charges of perjury against Flynn.
“The failure to dismiss the indictment was error,” DOJ wrote in its brief. “And the court’s efforts to pursue additional charges of contempt compounded its error.”
“When, like many other defendants, petitioner pleaded guilty but later asserted his innocence, he did not expose himself to prosecution for criminal contempt of court,” Francisco and the other DOJ attorneys noted. “The court lacks authority to bring its own prosecution of petitioner, for two independent reasons.”
“First, any false statements in this context are not contempt under 18 U.S.C. § 401,” the continued. “Second, even if petitioner’s conduct were punishable as contempt, the authority to prosecute him would lie with the Executive, not the court.”
The DOJ attorneys cited precedent after precedent, including Supreme Court decisions, that require Sullivan to dismiss Flynn’s case rather than mounting his own personal prosecution against Flynn.
“The district court plans to subject the Executive’s prosecutorial decision to extensive judicial inquiry, scrutiny, oversight, and involvement,” DOJ wrote. “Under the Supreme Court’s and this Court’s precedents, it is clear and indisputable that the district court has no authority to embark on that course.”
In his own response to the court, also filed on Monday afternoon, an attorney representing Sullivan argued that because DOJ’s motion to dismiss was unopposed by any of the actual parties to the case, he had a duty to become an adversary in the proceedings.
The appellate court has not yet ruled on the writ of mandamus from Flynn’s attorney. It is not known whether the court will hold oral arguments on the writ, or whether it will issue an order based solely on the briefs provided to the court. No deadline for action has yet been set by the appellate court.