Following the op-eds by Mary McCord and Jonathan Kravis, more than 2000 (now 2300) former Justice Department officials have signed onto a letter calling for Attorney General William Barr to resign over what they describe as his improper intervention in the criminal case of former Trump national security adviser Michael Flynn. More than 2K former DOJ officials call for AG Barr to resign over Flynn case:
[More than] 2000 former Justice Department officials have signed onto a letter calling for Attorney General William Barr to resign over what they describe as his improper intervention in the criminal case of former Trump national security adviser Michael Flynn.
“Attorney General Barr’s repeated actions to use the Department as a tool to further President Trump’s personal and political interests have undermined any claim to the deference that courts usually apply to the Department’s decisions about whether or not to prosecute a case,” reads the letter, which was organized by the group ‘Protect Democracy’.
Tuesday the federal judge assigned to the Michael Flynn case expressed his displeasure by taking the unusual step of allowing 3rd party amicus briefs to inform his decision regarding dismissal of the case. You can bet that those 2,300 former Justice Department officials are going to want to have their say:
The federal judge overseeing the case involving retired Lt. Gen. Michael Flynn took the unusual step Tuesday night of inviting briefs from third parties, and he plans to setup a schedule soon to accept those filings.
Judge Emmet G. Sullivan said in a filing Tuesday he’ll allow individuals outside of the Justice Department and Flynn’s attorneys to submit filings in the case that might be able to provide the court with additional information or perspectives that might help him make a decision on whether to dismiss the charges against Flynn or let him withdraw his guilty plea.
Citing a 7th U.S. Circuit Court of Appeals case, Sullivan wrote that “an amicus brief should normally be allowed when a party is not represented competently or is not represented at all, when the amicus has an interest in some other case that may be affected by the decision in the present case… or when the amicus has unique information or perspective that can help the court beyond the help that the lawyers for the parties are able to provide.”
Attorney General William Barr directed federal prosecutors last week to abandon their prosecution of Michael Flynn, who served briefly as national security adviser in the early days of the Trump administration. Flynn admitted that he had lied to the FBI about his conversations during the transition with Russia’s ambassador to the U.S.
The Justice Department’s decision drew intense criticism from nearly 2,000 former Justice Department and FBI officials on Monday, who signed an open letter strongly critical of Barr’s decision to abandon the prosecution of Michael Flynn, calling the action “extraordinarily rare, if not unprecedented.”
If anyone else who is not a friend of the president “were to lie to federal investigators in the course of a properly predicated counterintelligence investigation, and admit we did so under oath, we could be prosecuted,” the letter said.
Judge Sullivan wrote that, “given the current posture of this case,” he anticipates “individuals and organizations” to file legal briefings and letters, which are almost always made public.
A group of former federal prosecutors is planning to file an amicus brief as soon as the end of this week, NBC News has learned.
Tuesday’s order underscore how unusual the step is and notes that in a criminal case there are no D.C. federal court rules governing these submissions. He also cautioned those who wish to file, citing what Judge Amy Berman said in the case of Roger Stone, “while there may be individuals with an interest in this matter, a criminal proceeding is not a free for all.”
Still, Sullivan’s order signals his interest in hearing from those outside Justice Department and Flynn’s attorneys before making a decision in this case.
Quinta Jurecic and Ben Wittes at The Atlantic explain What Judge Sullivan Should Do:
U.S. District Judge Emmet G. Sullivan probably has little choice but to accede to the Justice Department’s outrageous motion that he dismiss the case against Lieutenant General Michael Flynn—notwithstanding Flynn’s guilty plea to false-statements charges more than two years ago. Existing law provides him little discretion in deciding whether to let the case go. That said, he does not have to dismiss the case without comment.
As with any motion before a federal district judge, this one provides an opportunity for the judge to question the government, which is now asking him to dismiss a case it has litigated since reaching a plea deal with Flynn in December 2017. He can explore the reasoning laid out in the department’s extraordinary brief. He can inquire into the rather obvious politics of the dismissal motion. And he can probe whether the Justice Department is really articulating a position it wishes to see courts apply in the future—or whether it is merely giving a windfall to a loyal ally of President Donald Trump.
The authors then propose “13 questions we would ask of government counsel if we were Judge Sullivan.”
I would add that is time for the federal legal community to take this opportunity to weigh in on the most corrupt attorney general in American history. Barr has debased the Department of Justice, undermining its credibility and undermining the rule of law. In your amicus briefs you should recommend that Judge Sullivan refer Attorney General William Barr to the Federal Bar for disciplinary proceedings for his multiple violations of the Rues of Professional Conduct, and recommending his disbarment from the practice of law.
If the attorney general will not resign, a likelihood, then the House must begin impeachment proceedings, regardless of an equally corrupt Republican Senate affording him cronyism protection.
UPDATE: Tierney Sneed at Talking Points Memo reports, What We Now Know About The Curious New Developments In The Flynn Case:
[On Tuesday evening] a filing from Flynn’s attorneys hit the docket expressing opposition to the submission of friend-the-court briefs in his case, as they asked for Sullivan to dismiss the case “immediately” because “no further delay should be tolerated.”
The Flynn filing revealed that a group of former Watergate prosecutors had sought to file such a brief on Monday.
The ex-prosecutors, according to a version of their filing made public late Tuesday night, wanted to argue to the judge that he has broad authority to probe the circumstances of the DOJ’s reversal in the case.
“There are at least substantial questions as to whether factual representations in the Motion are accurate and whether the Motion is made in good faith and consistent with the public interest,” the ex-prosecutors said, referring to the DOJ motion to dismiss the case.
In another draft filing obtained by TPM, the ex-prosecutors compared the current situation to the “Saturday Night Massacre,” i.e. the firing of the special prosecutor in the Watergate investigation.
“Here, where the Motion seeks to reverse a prosecutorial judgment previously entrusted to and made by Special Counsel, Robert Mueller, the value the Watergate Prosecutors’ unique perspective on the need for independent scrutiny and oversight to ensure that crucial decisions about prosecutions of high-ranking government officials are made in the public interest, are viewed as legitimate, and are not subsequently reversed by political intervention,” the ex-prosecutors said.
In his filing Tuesday evening, Flynn told the judge to reject the amicus brief, as he had rejected proposed amicus briefs previously in the case.
But it seems that the DOJ’s recent handling of the case has Sullivan now opening the door to hearing the opinions certain amici. His order on Tuesday said that “at the appropriate time” he’d be laying out a schedule for the filing of amicus briefs — a point he reiterated Wednesday morning in a follow-up order denying the submission of the Watergate prosecutors brief, for now.
Nick Akerman, one of the Watergate prosecutors signed on to the proposed brief, told TPM that the effort to file as amicus came together in the last few days, and that the group of former prosecutors generally keep in touch regularly.
“It came together because so many of us were upset the Justice Department has become totally politicized and it is being used as an instrument of Trump to cover up the entire Russia investigation,” Akerman said.
Akerman called the Justice Department’s reasons for wanting to dismiss the case “bogus.” He said that, because Flynn had twice in court submitted a guilty plea, and because the judge had already found that the evidence in the case backed the plea, it was within Sullivan’s authority not to grant the dismissal.
“He has every right to sentence Flynn,” Akerman said.
Just because Sullivan is considering letting Akerman and his colleagues formally weigh in doesn’t mean he’ll ultimately take their advice.