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Watergate Prosecutors Are Trying to Get Involved After D.C. Circuit Demands Answers from Michael Flynn Judge


Former US National Security Advisor General Michael Flynn arrives for his sentencing hearing at US District Court in Washington, DC on December 18, 2018.

The group of Watergate prosecutors who wanted to put their two cents in at the district court level before the case against Michael Flynn could officially be dismissed are now trying to get involved at the appellate level. The move comes one day after the U.S. Court of Appeals for the District of Columbia Circuit ordered U.S. District Judge Emmet Sullivan to provide an explanation for his actions within 10 days.

The Watergate prosecutors, who you can read all about here, submitted a motion on Friday for leave to file a brief as amici curiae in the D.C. Circuit. They say they have a “compelling interest” to get involved and have a “unique perspective” on the relationship between the executive and judicial branches in cases when associates of a president are suspected of crimes:

The Watergate Prosecutors have given notice to the district court that they intend to seek leave to file an amicus brief in response to the Government’s Motion to Dismiss the Flynn Information. Pet. 6; see App. 2 at 64-73. After the submission of that notice, the district court issued an order “anticipat[ing] that individuals and organizations will seek leave of the Court to file amicus curiae briefs.” App. 3 at 75. Flynn’s mandamus petition now seeks to preclude the Watergate Prosecutors from participating as amici before the district court. See Pet. 16. For that reason, the Watergate Prosecutors have a compelling interest in the disposition of the petition.

The Watergate Prosecutors also bring a unique perspective to this mandamus proceeding. Flynn’s prosecution was commenced, and his conviction (in the form of a guilty plea) was secured, by the office of a Special Counsel appointed to ensure an appropriate degree of independence from the United States Attorney’s Office and litigating divisions of the Department of Justice, after the Acting Attorney General determined that such an appointment would be “in the public interest.” 28 C.F.R. §600.1(b). The Watergate Prosecutors were likewise appointed to pursue investigation of politically connected officials in an objective, non-partisan way. Because of their work as members of the Watergate Special Prosecutor’s Office, they have unique insight into prosecutorial independence and the respective responsibilities of the Executive and Judicial Branches in fostering the public’s confidence in the institutions of the criminal law when close associates of the President are suspected of crimes.

Judge Sullivan, instead of immediately dismissing the case against Flynn as requested by both the defense and the Department of Justice, appointed John Gleeson as amicus curiae to argue why Flynn shouldn’t be held in criminal contempt and to address 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.” Other non-court-appointed amici curiae, such as the Watergate prosecutors we now discuss, were controversially invited to weigh in as well.

Attorneys for former National Security Advisor and retired lieutenant general Flynn promptly petitioned to the D.C. Circuit for a writ of mandamus, asking the appellate court to direct lower Sullivan to the DOJ’s motion to dismiss without further delay. This was initially seen by some as a risky move, but the D.C. Circuit’s speed in taking up the emergency petition and what it had to say could suggest otherwise.

“Upon consideration of the emergency petition for a writ of mandamus, it is ORDERED, on the court’s own motion, that within ten days of the day of this order the district judge file a response addressing petitioner’s request that this court order the district judge to grant the government’s motion to dismiss filed on May 7, 2020,” said the order from Circuit Judges Karen LeCraft Henderson, Neomi Rao and Robert L. Wilkins (appointed by Presidents George H.W. Bush, Donald Trump and Barack Obama, respectively).

Bottom line: Judge Sullivan is going to have to explain to the D.C. Circuit within 10 days why Rule 48(a) of the Federal Rules of Criminal Procedure and United States v. Fokker Services give him the authority to keep the Flynn case alive when both prosecution and the defense want the case dismissed. The DOJ was invited to submit a response within the same 10-day period.

The Watergate prosecutors said that their D.C. Circuit brief would address the “leave of court” question as well:

The Watergate Prosecutors’ proposed brief will assist the Court by setting forth legal analysis and argument on (i) the district court’s responsibilities under Rule 48(a) of the Federal Rules of Criminal Procedure to exercise discretion whether to grant “leave of court” to dismiss a criminal prosecution after a guilty plea and (ii) its authority to accept submissions from amici curiae in exercising those responsibilities.

Flynn pleaded guilty to lying to the FBI, fired his lawyers, and then moved to withdraw his plea before he could be sentenced. Despite that, the DOJ stepped in and said pursuing the case against Flynn was not in the “interests of justice.” The DOJ said that it couldn’t prove Flynn’s false statements were material—an element of the crime.

Watergate Prosecutors submi… by Law&Crime on Scribd

[Image via SAUL LOEB/AFP via Getty Images]

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Matt Naham is the Senior A.M. Editor of Law&Crime.