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George Conway, Laurence Tribe and Others Headline Brief Arguing Against ‘Virtually Unprecedented’ Dismissal of Michael Flynn Case


A coalition of 20 elite legal scholars on Friday submitted a legal brief imploring the federal judge overseeing the prosecution of retired lieutenant general Michael Flynn to deny the Justice Department’s motion to dismiss the criminal case against the former National Security Advisor. According to the brief, U.S. District Judge Emmet Sullivan is under no obligation to mechanically grant the DOJ’s controversial motion. There is no valid reason the court should be prevented from imposing a lawful sentence against a defendant who has twice pleaded guilty to committing a federal crime, the lawyers argued.

Led by Harvard Law School Professor Laurence Tribe, the group also included Berkeley Law legal scholar Erwin Chemerinsky, Cornell Law’s Michael Dorf, Chicago University’s David Strauss, and Trump nemesis/attorney and Lincoln Project co-founder George Conway.

In an 11-page amici curiae brief submitted to the U.S. District Court for the District of Columbia, the group contended that the DOJ’s request to dismiss the Flynn case was “virtually unprecedented,” and could have profound and lasting effects on federal judiciary’s independence from the executive branch.

“This case is ultimately about judicial independence and the integrity of the Judicial Branch and therefore about the rule of law in our constitutional democracy,” the brief stated. “The government’s motion to dismiss the case against Michael Flynn, after he twice pled guilty to violating 18 U.S.C. § 1001, asks this Court to place its imprimatur on the Executive Branch’s virtually unprecedented decision to dismiss a prosecution after the case has been won.”

Heavily emphasizing the fact that Flynn had twice stood before the court and admitted his guilt, the scholars rejected the notion that imposing a sentence without the support of the executive branch would conflict with the separation of powers doctrine.

“Some have suggested that the Executive Branch’s prosecutorial discretion and the separation of powers compel this Court to grant the government’s motion. Such suggestions are profoundly misguided,” the experts argued. “If anything, the separation of powers militates in the opposite direction and protects this Court’s authority to complete the resolution of this case, free from the interference of the Executive Branch. By denying the government’s motion, this Court would not be invading the prosecutorial discretion of the Executive Branch but rather ensuring the independence and integrity of the judiciary, which are fundamental values safeguarded by the separation of powers”

The filing argues that under Rule 48(a) of the Federal Rules of Criminal Procedure, federal prosecutors do not have unfettered discretion to terminate prosecutions at any time, and the court is required to make an independent determination that dismissing the case would be in the “public interest.”

“The determination required by Rule 48(a) gives this Court an institutional stake in the dismissal sought by the government, because granting the motion would entail an official certification by this Court as to where the public interest lies in this proceeding,” the brief stated. “Given the extraordinary factual and legal circumstances presented by the Department’s abandonment of the Flynn prosecution, such a certification is fraught with political risks to the Judicial Branch. In assessing the perils of the step the government asks the judiciary to take, this Court should heed the instruction of Chief Justice [John] Roberts, who opined for the Court just last Term that courts are ‘not required to exhibit a naiveté from which ordinary citizens are free.’”

Rather than dismissing the case, Sullivan controversially appointed retired federal judge John Gleeson as amicus curiae to present arguments as to why Flynn shouldn’t be held in criminal contempt. Sullivan has also given non-court-appointed amici curiae (such as Conway, Tribe, et al. and Watergate prosecutors) an opportunity to weigh in. Team Flynn responded to all of this by seeking an emergency writ of mandamus from the Court of Appeals for the D.C. Circuit. The appellate court has ordered Judge Sullivan to explain his thinking.

Read the full brief below.

Tribe Conway Amicus by Law&Crime on Scribd

[image via Saul Loeb – Pool/Getty Images]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.