We now have a much clearer idea of how U.S. District Judge Emmet Sullivan wants the proceedings in the Michael Flynn case to go. The bottom is that it looks like this is going to drag out for months.
The order from Sullivan said that unless good cause is shown by May 26th at noon, court-appointed amicus curiae (“friend of the court”) John Gleeson must file the amicus brief Sullivan demanded by “no later” than noon on June 10. This, and everything else in Sullivan’s scheduling order, was in keeping with what Gleeson requested as recently as Monday.
Gleeson, a retired federal judge and former mob prosecutor, was appointed by Sullivan to argue against the Department of Justice’s motion to dismiss the criminal case against Flynn. Sullivan also ordered arguments on why Flynn shouldn’t be held in criminal contempt. Gleeson said that the judge and the DOJ raised “important and complex issues”; he asked if he could submit his amicus brief on or before June 10.
“I respectfully request permission to submit a brief on or before June 10, 2020, addressing three issues: (1) the legal framework applicable to the Court’s authority with respect to a motion to dismiss brought under Rule 48 of the Federal Rules of Criminal Procedure (including both the constitutional validity of the Court’s authority to deny such a motion and the standard to be applied in deciding one); (2) any additional factual development I may need before finalizing my argument in opposition to the government’s motion in this case; and (3) whether, based on the record before the Court, it should order the defendant to show cause why he should not be held in criminal contempt for perjury,” Gleeson said. “I respectfully suggest that the Court set a schedule for responses (by the government, the defendant, and any other amici) to my filing, a reply by me to those responses, and oral argument. Upon the resolution of the issues addressed by my brief or raised in response to it, a schedule for any remaining proceedings could be set.”
Sullivan set dates and times for the Gleeson brief; the Flynn and DOJ replies; Gleeson’s reply; any potential Flynn and DOJ sur-replies; Gleeson, Flynn and DOJ responses to submissions from non-court-appointed amici curiae (e.g., Watergate prosecutors); and — finally — oral arguments.
Here was the judge’s order in its entirety:
MINUTE ORDER as to MICHAEL T. FLYNN granting 209 Motion to File Amicus Brief. The following schedule shall govern the proceedings in this case subject to a motion for reconsideration, for good cause shown, filed by no later than 12:00 PM on May 26, 2020: (1) the Court-appointed amicus curiae shall file the amicus brief by no later than 12:00 PM on June 10, 2020; (2) any motion seeking leave to file an amicus brief by non-Court-appointed amicus curiae shall be filed by no later than 12:00 PM on June 10, 2020; (3) the government and Mr. Flynn shall file their responses to the amicus brief of the Court-appointed amicus curiae by no later than 12:00 PM on June 17, 2020; (4) the Court-appointed amicus curiae shall file a reply brief by no later than 12:00 PM on June 24, 2020; (5) the government and Mr. Flynn shall file any sur-reply briefs by no later than 12:00 PM on June 26, 2020; and (6) the government, Mr. Flynn, and the Court-appointed amicus curiae shall file a consolidated response to any amicus brief of non-Court-appointed amicus curiae by no later than 12:00 PM on July 2, 2020. Movants seeking leave to file an amicus brief are HEREBY NOTIFIED that the Court will deny any motion for leave to file an amicus brief that fails to strictly comply with the applicable Local Rules. It is FURTHER ORDERED that the Court schedules oral argument for July 16, 2020 at 11:00 AM in Courtroom 24A. Signed by Judge Emmet G. Sullivan on 5/19/2020. (lcegs3) (Entered: 05/19/2020)
In summary: based on how things stand right currently, oral arguments on the DOJ’s motion to dismiss and opposition thereto will not happen until July 16—two full months from now. Between then and now, the Flynn and DOJ will joust with Gleeson and any amici curiae Judge Sullivan allows to participate.
This, of course, assumes that the D.C. Circuit Court of Appeals doesn’t take the case and shut it down before then.
[Image via SAUL LOEB/AFP/Getty Images]