The Department of Justice, after concluding that the prosecution of Michael Flynn was the product of misconduct by FBI and DOJ officials, moved to drop the case against Flynn.

But not so fast. Flynn pleaded guilty, a plea that the DOJ motion to drop the charges calls into question. A judge has discretion whether to allow a case to be dropped, but normally if the prosecution doesn’t want to prosecute, a judge will not force a prosecution. But where a guilty plea has been entered and accepted by the court, and a motion to withdraw the plea rejected by the court, the court has a lot more power because the prosecution, in a sense, is over already. Only sentencing remains.

The DOJ decision has infuriated the media and Democrats. They wanted Flynn in prison no matter what. Anti-Trump Protect Democracy rounded up 2000 former prosecutors — again, this has happened before — to write an Open Letter calling on AG William Barr to resign over the decision.

Then things got curious when Judge Emmet Sullivan made a docket entry suggesting that he may allow “amicus” briefs from non-parties. This is highly unusual in criminal cases.

The docket entry reads (emphasis added):

05/12/2020 MINUTE ORDER as to MICHAEL T. FLYNN. 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 pursuant to Local Civil Rule 7(o). There is no analogous rule in the Local Criminal Rules, but “[the Local Civil] Rules govern all proceedings in the United States District Court for the District of Columbia.” LCvR 1.1. “An amicus curiae, defined as friend of the court,… does not represent the parties but participates only for the benefit of the Court.” United States v. Microsoft Corp., No. 98-cv-1232(CKK), 2002 WL 319366, at *2 (D.D.C. Feb. 28, 2002) (internal quotation marks omitted). Thus, “[i]t is solely within the court’s discretion to determine the fact, extent, and manner of the participation.” Jin v. Ministry of State Sec., 557 F. Supp. 2d 131, 136 (D.D.C. 2008) (citation and internal quotation marks omitted). “‘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 (though not enough affected to entitle the amicus to intervene and become a party 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. Otherwise, leave to file an amicus curiae brief should be denied.'” Id. at 137 (quoting Ryan v. Commodity Futures Trading Comm’n, 125 F.3d 1062, 1064 (7th Cir. 1997)); see also LCvR 7(o). Although there is no corollary in the Local Criminal Rules to Local Civil Rule 7(o), a person or entity may seek leave of the Court to file an amicus curiae brief in a criminal case. See Min. Order, United States v. Simmons, No. 18-cr-344 (EGS) (D.D.C. May 5, 2020); cf. United States v. Fokker Servs. B.V., 818 F.3d 733, 740 (D.C. Cir. 2016) (appointing amicus curiae in a criminal case). As Judge Amy Berman Jackson has observed, “while there may be individuals with an interest in this matter, a criminal proceeding is not a free for all.” Min. Order, United States v. Stone, No. 19-cr-18 (ABJ) (D.D.C. Feb. 28, 2019). Accordingly, at the appropriate time, the Court will enter a Scheduling Order governing the submission of any amicus curiae briefs. Signed by Judge Emmet G. Sullivan on 5/12/2020. (lcegs3) (Entered: 05/12/2020)

Flynn counsel filed a motion and brief (pdf.) opposing allowing amicus briefs:

On May 11, 2020, a group referring to itself as “Watergate Prosecutors” submitted to the Court by email a Notice of Intent to File Motion for Leave to File Brief as Amicus Curiae.1 However, 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. Exhibit A. The proposed amicus brief has no place in this Court. No rule allows the filing, and the self-proclaimed collection of “Watergate Prosecutors” has no cognizable special interest. 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.

[1 The Watergate Prosecutors’ Notice also referred to this Court’s Local Criminal Rules, LCrR 57.6, but, as will be seen, applied for no relief other than permission to file an amicus brief. They do not have “a dog in this hunt” any more than do the former “Whitewater” prosecutors or the “Clinton impeachment” prosecutors.]

* * *

As set out in Exhibit A, this Court, on twenty-four specific occasions has rejected all prior attempts of other parties who have claimed an interest to intervene in this case in any way—as it should have….

Moreover, this travesty of justice has already consumed three or more years of an innocent man’s life—and that of his entire family. 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.

So what’s going on here? Obviously, I don’t know what’s in Judge Sullivan’s mind, but he has not yet said he will accept amicus briefs. He said he will consider it, and Techno Fog on Twitter suggests from missing docket entry 201 (see image above) that a request with proposed brief already has been filed. [See Update below]

What would be less unusual is if Judge Sullivan appointed counsel to represent the government’s (former) interest, now that the government has changed it litigation posture. That happens approximately once per term in the Supreme Court, particularly where no party any longer is defending lower court decisions. In SEC v. Lucia, the Supreme Court “invited” a specific amicus counsel after the SEC switched its position, and there no longer was anyone in the case defending the lower court decision.

Here, the decision to drop a case post-guilty plea is highly controversial, so perhaps Sullivan feels the need to have SOMEONE argue against it since both the prosecution and defendant are on the same side. Sullivan may, in a sense, be conducting a beauty contest to decide who to appoint to argue the government’s (former) position.

In a worst case scenario, Sullivan doesn’t want to drop the case and is creating as much of a record as he can. It would ultimately be an act of futility, since Trump almost certainly would pardon Flynn in this scenario, but that might be the preferred path for Sullivan given his expressed disdain for Flynn. Make Trump do it.

UPDATE:

The Court denied the secret motion to file an Amicus Brief pending a further scheduling Order:

05/13/2020 MINUTE ORDER as to MICHAEL T. FLYNN. On May 11, 2020, Chambers received proposed amici curiae’s “Notice of Intent to File Motion for Leave to File Brief as Amicus Curiae or Application Under Local Rule 57.6” and “Statement of Interest.” In light of the Court’s forthcoming Scheduling Order governing the submission of any amicus curiae briefs, leave to file the submission by proposed amici curiae is DENIED. The Clerk of Court is directed not to docket the filing submitted by proposed amici curiae. Signed by Judge Emmet G. Sullivan on 5/13/2020. (lcegs3) (Entered: 05/13/2020)

Also, a 5-13-2020 docket entry indicates that entry 201 was a motion by the defense:

05/13/2020 MINUTE ORDER as to MICHAEL T. FLYNN denying 201 Defendant’s Sealed Motion for Leave to File Document Under Seal; construing 203 Defendant’s Sealed Document as a motion and denying as moot the relief requested; denying as moot 204 Defendant’s Motion to Strike and Opposition to Notice of Intent to File Motion for Leave to File Amicus Brief. Signed by Judge Emmet G. Sullivan on 5/13/2020. (lcegs3) (Entered: 05/13/2020)

 

 
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