Tribe, Bollinger, Conway urge court to deny motion to dismiss Flynn indictment

In a friend of the court brief a host of prominent lawyers and scholars have joined Lawrence Tribe and Columbia University President Lee Bollinger  to urge the United State Court of Appeals for the District of Columbia Circuit to deny the federal government's motion to dismiss the indictment of Michael Flynn.  The former National Security Advisor twice pleaded guilty to making a false state to the FBI.  But under the leadership of Willliam Barr the Department of Justice now claims it could not prove its case.

District Judge Emmett Sullivan has appointed former judge John Gleeson as a friend of court to advise him as to whether the government's dismissal motion should be granted or not, and whether Flynn should be held in contempt of court.  Flynn has moved in the D.C. Circuit for an order (called a mandamus) directing Sullivan to dismiss the indictment, thus sparing Donald Trump of the embarrassment of pardoning a guilty man.

The legal scholars and former high government lawyers lawyers conclude that the court is not a rubber stamp for the prosecutors:

Article III grants the judiciary “the power, not merely to rule on cases, but to decide them.” Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218-19 (1995) (emphasis in original). The political branches may not “comman[d] the federal courts to reopen final judgments,” id. at 219, or “prescribe rules of decision to the Judicial Department ... in [pending] cases.” United States v. Klein, 80 U.S. (13 Wall.) 128, 146 (1872). Thus, in Klein, the Court held that a post-Civil War statute invaded the province of the judiciary by providing that no pardon should be admissible as proof of loyalty on the part of former Confederates and directing the Court of Claims and the Supreme Court to dismiss for want of jurisdiction any claim based on a pardon.
If the judiciary is protected from the incursions of both political branches, acting together, then a fortiori, the courts are protected from the unilateral actions of the Executive Branch. See also Robertson v. Seattle Audubon Society, 503 U.S. 429, 438 (1992) (political branches may not “compel[] . . . findings or results under [preexisting] law”). The separation of powers protects this Court’s authority to complete the resolution of this case, free from the interference of the Executive Branch. As Alexander Hamilton recognized, 24 “[t]he complete independence of the courts of justice is peculiarly essential in a limited Constitution.” The Federalist No. 78, at 466.
CONCLUSION The government’s motion should be denied. 

Respectfully submitted.

/s/ Jonathan S. Massey /s/ Laurence H. Tribe