What the Judge Overseeing Michael Flynn’s Case Can Do Now

Emmet Sullivan is right to be skeptical of DOJ prosecutors.

Outside the court building, Flynn turns to the camera, with more photographers in the background
Michael Flynn at the U.S. District Court in Washington on Dec. 18, 2018. Saul Loeb/AFP via Getty Images

After months of speculation about whether President Donald Trump would pardon his former national security adviser Michael Flynn, the Justice Department relieved the president of that responsibility by deciding to abandon its prosecution. The government has filed a motion to dismiss the charges against Flynn, and Judge Emmet Sullivan must now decide whether to grant that motion. Sullivan raised eyebrows earlier this week by ruling that he will accept amicus briefs—written arguments by third parties—on the matter. That ruling was prompted by a group of former Watergate prosecutors, who had asked his permission to file a brief arguing against the government’s motion to dismiss the charges. In addition to accepting these briefs, Sullivan appointed former federal Judge John Gleeson to argue against the government’s motion and to explore whether Flynn has opened himself up to perjury charges since asking to withdraw his guilty plea.

Sullivan’s decision has prompted some serious backlash among conservatives, with some calling his decision politically motivated and others stating that he acted unethically. Flynn’s lawyers have objected to allowing amicus briefs on the government’s motion, saying that allowing those briefs to be filed violates the U.S. Constitution’s separation of powers. None of these arguments is convincing.

First, Sullivan’s decision is not unethical. Judicial ethics rules do not prohibit judges from hearing legal arguments from people who are not parties to a case. Nor does it matter that Sullivan had previously rejected motions by third parties to file briefs in this case. Because the defense and the prosecution are both trying to get the case dismissed, neither of them will let Sullivan know the weaknesses of each other’s arguments. And so amicus briefs will be more helpful to Sullivan than they were before, when he was receiving briefs on opposing sides of issues.

Second, allowing amicus briefs does not violate the separation of powers. Amicus briefs are incredibly common in the appellate courts, and while they may be less common in the federal trial courts, they are hardly unheard-of. The U.S. Supreme Court routinely appoints lawyers to argue in place of the prosecution when the government refuses to defend a conviction or a sentence on appeal. Sometimes those appointed lawyers even win. The weakness of the separation of powers argument is underscored by the fact that Flynn’s lawyers cite only a lone dissent from Justice Antonin Scalia, rather than an actual Supreme Court decision, in support of their constitutional claim. (They oddly claim that Scalia’s dissent has “won the day” even though no subsequent Supreme Court decision has adopted it.)

Third, it is far from clear that Sullivan is motivated by politics. When he discovered that federal prosecutors improperly withheld evidence in the corruption trial of Republican Sen. Ted Stevens, he was incredibly outspoken in his criticism of the Justice Department. He even went so far as to appoint a private lawyer to investigate and recommend whether any of the federal prosecutors should be punished for criminal contempt. When Sullivan ordered that investigation, President Barack Obama was in office and Eric Holder was the attorney general. That suggests Sullivan is more likely motivated by distrust of federal prosecutors than by politics.

While the arguments against Sullivan’s decision to allow amicus briefs are pretty silly, whether he can—or should—deny the government’s motion is not clear. Ordinarily, judges will not stand in the way of a prosecutor who decides to dismiss criminal charges against a defendant rather than take a case to trial. That is because the decision whether to prosecute an individual is a core executive power. But Flynn’s case progressed further than just prosecution: He had already pleaded guilty and was awaiting sentencing. In other words, his case had reached the point where judicial power was needed, not just executive power.

Prosecutors have the power to negotiate guilty pleas with criminal defendants, and federal judges aren’t involved in that process. But once it comes time for the defendant to actually plead guilty, the judge’s participation is necessary. A judge has to accept a defendant’s plea in order for the conviction to be valid, and she can do that only after making sure that the defendant’s decision to plead guilty is voluntary and that there are facts to support the conviction. Judges almost always accept plea bargains, but they do sometimes reject them.

Prosecutors will sometimes ask a judge to dismiss charges even after a defendant has been convicted. In some situations, the judge must grant the motion, even if she doesn’t agree with it. But it isn’t clear whether the Flynn prosecution is one of those situations, or whether Sullivan has the authority to reject the government’s motion. That legal question will doubtlessly be explored in the amicus briefs Sullivan receives.

Ordinarily, a prosecutor’s effort to overturn a conviction is a sign that the prosecutor takes her role as a minister of justice seriously. For example, earlier this week Rachael Rollins, the district attorney in Boston, asked the Massachusetts Supreme Court to vacate the convictions of dozens of people who pleaded guilty to drug charges. Laboratory tests conducted after the defendants were convicted showed that the substances they possessed weren’t actually illegal drugs, and so Rollins has asked that the convictions be set aside because these people are actually innocent.

As the Rollins example illustrates, a prosecutor’s effort to undo a conviction is ordinarily something to celebrate. We should want prosecutors to revisit old cases when new information comes to light, and we should want them to help erase convictions when that information suggests that a defendant is innocent. That is what the Justice Department says it is doing in Flynn’s case. The motion to dismiss Flynn’s charges says that the Justice Department conducted a review of all the facts and circumstances of the case and that the Department no longer believes “that the Government can prove either the relevant false statements or their materiality beyond a reasonable doubt.”

But the new information in Flynn’s case doesn’t prove his innocence the way the drug tests proved the innocence of the Boston defendants. He lied to the FBI, which is a crime. Although Flynn now says that he is innocent, he admitted that he lied to the FBI—twice—under oath, in open court. And Sullivan had already ruled on the materiality question as well. In light of this, it is hard to understand how the Justice Department can now claim that it doesn’t think it can prove its case; it already proved it. And while the new information that has been uncovered may make the FBI look bad, it doesn’t include any information suggesting that Flynn is factually innocent.

Nor do the Justice Department’s actions seem to be about trying to right an injustice. Some of the tactics that were used against Flynn are distasteful: Law enforcement didn’t tell Flynn he should speak to a lawyer before his interview with the FBI. And prosecutors had enormous leverage to pressure Flynn to plead guilty, including possible criminal charges against his son. But the tactics that law enforcement used when interviewing, charging, and negotiating a plea bargain with Flynn are indistinguishable from actions that are taken every day in federal criminal prosecutions. Attorney General Bill Barr hasn’t appointed anyone to review any of those other cases. He hasn’t questioned the motives that prompted any other convictions for lying to federal officials. And his office hasn’t sought to reverse any of those convictions.

It would be great to see all defendants given more protection, subject law enforcement to more scrutiny, and revisit the wisdom of prior convictions whenever defendants say they didn’t actually commit a crime. But only Michael Flynn is getting this special treatment. The Justice Department should not have one set of procedures for friends and allies of the president and another set of procedures for everyone else. That’s not justice—it’s injustice.