Judge Sullivan refuses to dismiss Flynn case, opens door to outside interests submitting amicus briefs

Judge Emmet Sullivan, whose disdain for General Michael Flynn led him to ask prosecutors if they had considered charging him with treason in a hearing last December 18, is twisting himself into a pretzel in order to avoid throwing out Flynn's guilty plea and dismissing the case.  The Department of Justice's request for dismissal after a review of the case by career prosecutor U.S. attorney Jeff Jensen is thus postponed if not denied.


Judge Sullivan (official court photo).

This is a startling reversal for the judge, who on 24 previous occasions had rejected efforts by outside parties claiming an interest in the case to file such briefs.  In a brief filed in response (PDF here), General Flynn's attorneys, Sidney Powell and Jesse Binnall, pointed out the judge’s inconsistency:


Highlighting courtesy of Sundance.

Fox News points out the pedigree of one group that already filed a brief even before Sullivan's response to the motion to dismiss:

Flynn's legal team indicated in a filing Tuesday that 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. That group was featured in an October 2019 Washington Post opinion piece, and listed Jill Wine-Banks -- who previously advanced unsubstantiated collusion theories involving the Trump campaign and Russia -- as one of its members.

Wine-Banks was also explictly named as a member of the group seeking to file an amicus brief in the Flynn case.

"Mueller can prove conspiracy with Russia beyond any doubt," Wine-Banks previously wrote. She also claimed in 2017 that Flynn would receive "immunity for kidnapping as well as his federal crimes."

Late Tuesday, President Trump retweeted a post by the Twitter user Techno_Fog calling Wine-Banks a "Trump/Russia collusion nutter." The post concluded, sarcastically: "Good job Judge Sullivan!"

Wine-Banks did not immediately respond to Fox News' request for comment.

While it is disappointing that General Flynn's ordeal will continue, close examination of his order by Cornell University clinical professor of law William Jacobson indicates that Judge Sullivan has not committed to accepting amicus briefs:

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[.]

Professor Jacobson speculates about the judge's motive:

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.

This certainly sounds like politics influencing the judge.  But we'll see what the judge does next.

Judge Emmet Sullivan, whose disdain for General Michael Flynn led him to ask prosecutors if they had considered charging him with treason in a hearing last December 18, is twisting himself into a pretzel in order to avoid throwing out Flynn's guilty plea and dismissing the case.  The Department of Justice's request for dismissal after a review of the case by career prosecutor U.S. attorney Jeff Jensen is thus postponed if not denied.


Judge Sullivan (official court photo).

This is a startling reversal for the judge, who on 24 previous occasions had rejected efforts by outside parties claiming an interest in the case to file such briefs.  In a brief filed in response (PDF here), General Flynn's attorneys, Sidney Powell and Jesse Binnall, pointed out the judge’s inconsistency:


Highlighting courtesy of Sundance.

Fox News points out the pedigree of one group that already filed a brief even before Sullivan's response to the motion to dismiss:

Flynn's legal team indicated in a filing Tuesday that 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. That group was featured in an October 2019 Washington Post opinion piece, and listed Jill Wine-Banks -- who previously advanced unsubstantiated collusion theories involving the Trump campaign and Russia -- as one of its members.

Wine-Banks was also explictly named as a member of the group seeking to file an amicus brief in the Flynn case.

"Mueller can prove conspiracy with Russia beyond any doubt," Wine-Banks previously wrote. She also claimed in 2017 that Flynn would receive "immunity for kidnapping as well as his federal crimes."

Late Tuesday, President Trump retweeted a post by the Twitter user Techno_Fog calling Wine-Banks a "Trump/Russia collusion nutter." The post concluded, sarcastically: "Good job Judge Sullivan!"

Wine-Banks did not immediately respond to Fox News' request for comment.

While it is disappointing that General Flynn's ordeal will continue, close examination of his order by Cornell University clinical professor of law William Jacobson indicates that Judge Sullivan has not committed to accepting amicus briefs:

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[.]

Professor Jacobson speculates about the judge's motive:

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.

This certainly sounds like politics influencing the judge.  But we'll see what the judge does next.