Judge Sullivan Can Reject the Government’s Motion to Drop Flynn’s Case - Lawfare

Two Harvard law professors, representing 960 former federal prosecutors, say in a proposed amicus brief that federal Judge Emmet  Sullivan is obligated to reject the Attorney General's motion to dismiss the false statement indictment of former National Security Advisor Michael Flynn.  - gwc

Judge Sullivan Can Reject the Government’s Motion to Drop Flynn’s Case - Lawfare
By Andrew Crespo, Laura Londoño Pardo, Kristy Parker, Nathaniel Sobel (Harvard Law School)

In the wake of Attorney General William Barr’s unprecedented decision to drop the Department of Justice’s years-long prosecution of former Trump national security advisor Michael Flynn, many are asking: Is this the end of the case? Two recent orders issued by Judge Emmet Sullivan, the judge presiding over Flynn’s prosecution, make clear the answer is no.

First, exercising the court’s inherent authority, Judge Sullivan indicated on May 12 that he will welcome amicus curiae briefs from anyone who may have a “perspective that can help the court beyond” what “the parties are able to provide,” given that both Flynn and the government are now seeking the same outcome. Then, the next day, Judge Sullivan appointed an independent lawyer—former federal prosecutor and U.S. District Court Judge John Gleeson—to advise him as to whether he should grant the department’s request to dismiss the case. (Prior to Judge Sullivan’s order, Judge Gleeson co-authored a Washington Post op-ed arguing that the court should carefully review the government’s motion).

Some commentators have questioned whether Judge Sullivan has the authority to deny the government’s motion. In the immediate aftermath of the Justice Department’s motion, the early conventional wisdom—including on Lawfare—seemed to be that precedent allowed the judge virtually no leeway. Since then, some scholars, including Noah Feldman and Larry Tribe, have countered the claim that Sullivan’s role is to be a potted plant. But to our knowledge, no one has offered a detailed analysis of the legal issues that Judge Sullivan now confronts.

Two of us, along with colleagues at Protect Democracy, represent over 960 former federal prosecutors and former high-ranking Justice Department officials (the number continues to grow). On their behalf, we plan to seek leave to file an amicus brief in the Flynn case—a current draft of which readers can find here—once a briefing schedule is set.

Our conclusion is clear: Judge Sullivan does not merely have the authority to review the Department’s motion to dismiss. As courts have described it, he has a “duty” to ensure that the dismissal is in “the public interest” and is not “tainted by impropriety” or “bad faith.” And if, after careful review, he finds that the motion is in fact tainted, his duty is equally clear: He must deny it.

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