A federal judge signaled Tuesday that he wasn’t ready to toss out the case against Michael Flynn, the former national security adviser who pleaded guilty to lying to the FBI, after the Justice Department said it would drop all charges against Flynn last week.
U.S. District Judge Emmet Sullivan issued a terse order on Tuesday saying he planned to let third parties file “friend of the court” briefs and that he believed “individuals and organizations” would seek to weigh in on the politically charged case.
Under the leadership of Attorney General William Barr, the Justice Department took the extraordinary step last week of dropping its case against Flynn — the latest example of the Trump administration’s attempt to undo any outcomes of special counsel Robert Mueller’s probe into Russian interference in the 2016 election.
It’s highly unusual for federal prosecutors to withdraw a case after a defendant has already pleaded guilty. Flynn did so twice, saying he lied to the FBI about his contact with Russian officials. But he abruptly changed tack last year after initially cooperating with investigators, hiring new lawyers and seeking to withdraw his plea. His attorneys went on a media blitz, attacking Mueller’s probe and urging Trump to exonerate him.
U.S. Attorney Timothy Shea said last week that even if Flynn lied, he shouldn’t have been investigated and his actions were not relevant to the FBI’s probe into Russian interference.
Sullivan’s move on Tuesday is also unusual. He is the final arbiter of whether the case is dismissed, and he could hold a hearing on the matter and call witnesses to explain the facts of the case, including Flynn himself.
Flynn’s attorneys filed their own motion later on Tuesday voicing their opposition to the briefs.
“It is no accident that amicus briefs are excluded in criminal cases,” the lawyers wrote in a filing. “A criminal case is a dispute between the United States and a criminal defendant. There is no place for third parties to meddle in the dispute, and certainly not to usurp the role of the government’s counsel.”
Barr’s decision to drop the case prompted fierce backlash last week. In a private call, former President Barack Obama said the rule of law was “at risk,” and a coalition of nearly 2,000 former DOJ officials also signed an open letter calling for Barr’s resignation over what they described as an “assault” on the rule of law.
“If any of us, or anyone reading this statement who is not a friend of the President, were to lie to federal investigators in the course of a properly predicated counterintelligence investigation, and admit we did so under oath, we would be prosecuted for it,” the group wrote.