D.C. Circuit Orders Judge Sullivan to Respond to Michael Flynn Petition

Remigio Civitarese
Mag 24, 2020

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. Though the division does not have authority on its own to bring a criminal prosecution, the after-action review will look at whether any current employees engaged in misconduct deserving of discipline.

They also revealed that Peter Strzok, the FBI's then-deputy assistant director for counterintelligence operations, urgently reached out to agents handling the Flynn case to advise them not to close the case after the agents determined there were no more leads to follow in the Flynn probe. Flynn's lawyers then accused Sullivan of bias and asked the U.S. Court of Appeals to intervene. Trump and his allies have denounced the FBI's investigation of contacts between his campaign and Russians.

In an unprecedented move, the Justice Department late last month asked Flynn's judge, U.S. District Judge Emmet Sullivan, to dismiss its prosecution of Flynn.

The department, in a major reversal, on May 7 asked Sullivan to drop the charges, drawing accusations from Democrats and retired career prosecutors that Attorney General William Barr was politicizing the US criminal justice system to go light on Trump's friends and associates. The FBI cooperated with Jensen, who after looking over the case materials recommended that the prosecution be dropped.

The bureau noted that while it can evaluate whether any current employees' conduct in the Flynn case may warrant disciplinary actions, it added that it does not have the ability to order disciplinary actions for former employees.

But the move outraged former law enforcement officials involved in the case, who said the Justice Department had ignored the seriousness of the false statements that Flynn admitted making, as well as the gravity of their national security concerns about Flynn's interactions with the Russian ambassador, Sergey Kislyak.

A federal judge doesn't typically hire private counsel to respond to an appeals court, and yet so much about Flynn's case has been a departure from the norm.

But given the remarkable way Flynn's case has unfolded - which included Flynn in December 2018 reaffirming his guilty plea to Sullivan under oath - Sullivan isn't granting the DOJ request just yet.

The department's request to dismiss the case is now pending before a federal judge, who has not indicated whether he will grant it. It will also evaluate the bureau's policies and procedures to identify areas of improvement. "However, Mr. Jensen's work will continue to take priority, and the Director has further ordered the Inspection Division to coordinate closely with Mr. Jensen and ensure that the review does not interfere with or impede his efforts".

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