Case Not Dismissed Just Yet: Flynn Judge Delays Decision, Opening Up to Outside Input

The judge overseeing the prosecution of former National Security Adviser Michael Flynn won’t immediately grant a U.S request to dismiss the case, saying he’s willing to hear from outsiders who want to weigh in on what should happen next.

U.S. District Judge Emmet Sullivan in Washington said on Tuesday he would accept friend-of-the-court briefs in response to the dismissal request from Attorney General William Barr’s Justice Department, according to the court docket. Flynn had pleaded guilty to lying to federal agents and was cooperating with the investigation before deciding in January to try to withdraw that plea.

The judge’s unusual move is a potential setback to the Justice Department and President Donald Trump, who has repeatedly attacked the case, part of Special Counsel Robert Mueller’s probe into Russian interference in the 2016 election.

“Judge Sullivan could have ended this entire matter with a single word: granted,” said Harry Sandick, a former federal prosecutor who isn’t involved in the case. “Instead, he seems open to the idea of hearing other voices about whether DOJ’s motion should be granted. This case is not over.”

Sullivan said in the order that he would set a schedule governing the submission of so-called amicus curiae briefs by people and organizations. The judge didn’t give any indication when he’d start accepting the briefs or how long it may take for him to issue a decision. He suggested there may be some limits to which briefs he accepts, quoting the judge who oversaw the trial of Trump’s longtime backer Roger Stone.

“As Judge Amy Berman Jackson has observed, ‘while there may be individuals with an interest in this matter, a criminal proceeding is not a free for all,’” Sullivan wrote.

In moving to dismiss its case, the U.S. said an internal review found that Flynn’s false statements to agents of the Federal Bureau of Investigation weren’t “material” to the probe into whether Russia interfered in the election.

“The government cannot explain, much less prove to a jury beyond a reasonable doubt, how false statements are ‘material’ to an investigation that ... seems to have been undertaken only to elicit those very false statements and thereby criminalize Mr. Flynn,” U.S. Attorney Timothy Shea said in a brief.

The reversal renewed criticism that the Justice Department under Barr is making politically motivated calculations to benefit Trump.

“The president doesn’t need to issue pardons to his cronies when his attorney general appears willing to terminate their cases before justice can be served,” Noah Bookbinder, a former federal prosecutor who’s executive director of the group Citizens for Responsibility and Ethics in Washington, said in a statement Thursday after the Justice Department moved to dismiss the case.

If Sullivan, a Bill Clinton appointee, declines to dismiss the case, the U.S. would almost certainly appeal.

The standard for a judge deciding whether to grant such a motion is “very deferential” to the Justice Department, though not automatic, according to Sandick and other legal experts.