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Judge Hits Pause on Watergate Prosecutors’ Arguments in Favor of Michael Flynn’s Immediate Sentencing


WASHINGTON, DC - JUNE 24: President Donald Trump’s former National Security Adviser Michael Flynn leaves the E. Barrett Prettyman U.S. Courthouse on June 24, 2019 in Washington, DC. Criminal sentencing for Flynn will be on hold for at least another two months.

Federal Judge Emmet G. Sullivan has again pumped the brakes on two key requests this week which have serious effects on the federal prosecution of former national security advisor Michael Flynn.

Sullivan entered two so-called “minute orders” into the case docket Wednesday morning. In the first minute order, Sullivan denied a harshly worded attempt late Tuesday by Flynn’s attorneys to have the case jettisoned on the spot. Our coverage of that document is here.

In the second minute order, Sullivan denied a move by a group which calls itself the “Watergate Prosecutors” to file amicus briefs in the case on the group’s own schedule. The group filed a notice of leave seeking to intervene; Sullivan said the matter was moot because he already decided to set up his own scheduling calendar for any so-called “friends of the court.” Thus, the denial surrounds scheduling; it is not a complete smackdown of the group’s ability to jump into the case. Our coverage of the judge’s decision to allow amicus briefs in the Flynn matter is here.

Though one of Sullivan’s Wednesday minute orders directs the Clerk of Court “not to docket the filing” submitted by the Watergate Prosecutors, CNN obtained the document anyway. It argues that Judge Sullivan has the power to sentence Flynn regardless of Flynn’s attempt to withdraw his guilty plea and regardless of the Department of Justice’s attempt to concomitantly dismiss the case. It also argues that the courts have the power to independently investigate whether prosecutors are “motivated by considerations clearly contrary to the manifest public interest” and to probe whether the DOJ’s move to drop the Flynn case is being made in “good faith.” Specifically:

The Watergate Prosecutors, for reasons set forth in the accompanying Statement of Interest, are uniquely suited to help ensure a fair presentation of the issues raised by the Government’s Motion, which include, without limitation, the accuracy of the facts and law presented in the Motion, the significance of the Defendant’s prior admissions of guilt and this Court’s orders to date, the Trump administration’s opposition to the prosecution of the Defendant, and whether the Government’s change of position reflects improper political influence undermining determinations made by the Special Counsel’s Office.

Here is how the group described itself and its motives:

Proposed Amici Curiae (“Amici”) served on the Watergate Special Prosecution Force, which investigated the Watergate scandal between 1973 and 1977.  Amici are:  Nick Akerman, Richard Ben-Veniste, Richard J. Davis, Carl B. Feldbaum, George T. Frampton, Jr., Kenneth S. Geller, Gerald Goldman, Stephen E. Haberfeld, Henry L. Hecht, Paul R. Hoeber, Philip Allen Lacovara, Paul R. Michel, Robert L. Palmer, Frank Tuerkheimer, Jill Wine-Banks, and Roger Witten. Amici have also held positions in government, in academia, and in private practice.  In their roles as Watergate prosecutors, Amici investigated serious abuses of power by President Richard M. Nixon and prosecuted many of President Nixon’s aides for their complicity in his offenses.  More than any other episode in modern American history, the Watergate scandal exemplified how unchecked political influence in the Justice Department can corrode the public trust. As Special Prosecutor Archibald Cox explained, his office was established to “restore confidence, honor, and integrity in government.”

You might know Akerman and Wine-Banks from media appearances on MSNBC. Paul Michel is retired circuit judge who was appointed by Ronald Reagan.

The amicus parties attempting to intervene in the Flynn matter said “[t]he parallels and the contrasts between the Watergate affair and the present situation now before this Court” were striking.  They referenced Nixon’s Saturday Night Massacre (which resulted in the resignation of then-Attorney General Elliot Richardson, the resignation of then-Deputy Attorney General William Ruckelshaus, and the firing of Watergate Special Prosecutor Archibald Cox at the hands of then-Solicitor General Robert Bork) to argue that the DOJ’s attempt to dismiss the charges brought Special Counsel Robert Mueller‘s team against Flynn needed “independent scrutiny and oversight to ensure that crucial decisions about prosecutions of high-ranking government officials are made in the public interest, are viewed as legitimate, and are not subsequently reversed by political intervention.”  The Watergate Prosecutors said they had “unique perspective” to bring to the table because of their experience.

“The integrity of prosecutorial decision making is a cornerstone of the rule of law. Amici have a special interest in restoring the public trust in prosecutorial decision making and in public confidence in the viability of future independent investigations and prosecutions if the results of such work are likely to be subjected to reversal by transparent political influence,” the group said.

Those arguments are not part of the official Flynn court docket, however.  Judge Sullivan’s orders suggest he will set up a calendar for such arguments to be made in the future.

Read the minute orders and the Watergate Prosecutors’ motion below:

MINUTE ORDER as to MICHAEL T. FLYNN denying 201 Defendant’s Sealed Motion for Leave to File Document Under Seal; construing 203 Defendant’s Sealed Document as a motion and denying as moot the relief requested; denying as moot 204 Defendant’s Motion to Strike and Opposition to Notice of Intent to File Motion for Leave to File Amicus Brief. Signed by Judge Emmet G. Sullivan on 5/13/2020. (lcegs3) (Entered: 05/13/2020)

MINUTE ORDER as to MICHAEL T. FLYNN. On May 11, 2020, Chambers received proposed amici curiae’s “Notice of Intent to File Motion for Leave to File Brief as Amicus Curiae or Application Under Local Rule 57.6” and “Statement of Interest.” In light of the Court’s forthcoming Scheduling Order governing the submission of any amicus curiae briefs, leave to file the submission by proposed amici curiae is DENIED. The Clerk of Court is directed not to docket the filing submitted by proposed amici curiae. Signed by Judge Emmet G. Sullivan on 5/13/2020. (lcegs3) (Entered: 05/13/2020)

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University. He is a former anchor and executive producer for the Law&Crime Network and is now deputy editor-in-chief for the Law&Crime website. DISCLAIMER:  This website is for general informational purposes only. You should not rely on it for legal advice. Reading this site or interacting with the author via this site does not create an attorney-client relationship. This website is not a substitute for the advice of an attorney. Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.