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Judge in Michael Flynn case requests input and appoints retired judge to argue against DOJ’s decision to drop case
© WikiMedia (Erin A. Kirk-Cuomo)
Judge in Michael Flynn case requests input and appoints retired judge to argue against DOJ’s decision to drop case

Judge Emmet Sullivan of the US District Court for the District of Columbia entered an order Tuesday allowing “amicus curiae,” of “friend of the court” briefs on how to handle the Department of Justice (DOJ) decision to drop its case against Michael Flynn, a former national security advisor to President Donald Trump.

Sullivan also appointed retired judge John Gleeson on Wednesday as an amicus curiae to argue against the DOJ’s motion to dismiss its case against Flynn. Gleeson was specifically ordered to “address whether the Court should issue an Order to Show Cause why Mr. Flynn should not be held in criminal contempt for perjury.”

Flynn pleaded guilty to lying to the FBI in December of 2017 as part of the Mueller investigation. His sentencing was postponed multiple times throughout 2018, 2019 and 2020. Although the DOJ initially recommended up to six months in prison for Flynn in January of this year, it then moved to drop the case against Flynn on May 8 based on their determination that his actions were “not ‘material’ to any viable counterintelligence investigation.”

Sullivan cited case precedent to affirm that the amicus brief is generally permissible “when a party is not represented competently or is not represented at all, when the amicus has an interest in some other case that may be affected by the decision in the present case (though not enough affected to entitle the amicus to intervene and become a party in the present case), or when the amicus has unique information or perspective that can help the court beyond the help that the lawyers for the parties are able to provide.” Because there has been little to no precedent for how to handle this situation of the DOJ suddenly dropping the case after years of litigation and postponing, Sullivan held it to be appropriate to allow the submission of any amicus briefs.