Federal Judge Emmett Sullivan, before whom former National Security Adviser Michael Flynn twice pleaded guilty to lying to the FBI, refused to acquiesce in the William Barr-led Justice Department's decision to move to dismiss the indictment while Flynn awaited sentencing.
The Federal Rules give Sullivan the power to refuse to dismiss the charges if he deems it against the public interest. The was great surprise when he refused to bend a knee and went to far as to appoint John Gleason, a retired judge, as amicus curiae to argue against the motion.
The New Jersey Law Journal Editorial Board (on which I serve) affirmed that Sullivan has such power. Today the issue was decisively resolved by an en banc decision (two dissenting) by the United States Court of Appeals for the District of Columbia Circuit.
Vox Media legal affairs correspondent Ian Milhiser writes up the issue today. He relies in part on Fordham law prof and historian Jed Shugerman who points out that the Department of Justice - which did not even exist until 1970 - has no monopoly on the prosecutorial function. Historically even private parties could prosecute criminal cases. More importantly the Federal Rules of Criminal Procedure give Judge Sullivan the authority to refuse to dismiss the indictment. - GWC
Trump Judge Neomi Rao’s attempt to bail out Michael Flynn ends in defeat - Vox
by Ian Milhiser
A federal appeals court’s 8-2 decision in In re: Michael T. Flynn, handed down Monday, affirms — over the objection of two right-wing judges — that the ordinary rules that apply to any other litigant also apply to President Trump’s former national security adviser. Michael Flynn, a former general who briefly served as Trump’s top national security aide, won’t be able to have criminal charges against him dropped before his case is heard by a federal trial judge.
It’s hardly an earth-shattering legal event. But the decision is significant because it unwinds a deeply radical opinion by one of President Trump’s most partisan appointees to the federal bench.
It remains likely that Flynn will escape federal charges that he lied to the FBI. And it is likely that he will do so even though he once pleaded guilty to those charges.
But Flynn, at the very least, will not get a special exception to the rules governing criminal appeals.
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