Judge Emmet G. Sullivan issued a highly unusual order in the Michael Flynn case on Tuesday, indicating he would invite outside groups to submit amicus curiae (“friend of the court”) briefs weighing in on the Department of Justice’s motion to dismiss charges.
Flynn pleaded guilty to lying to the FBI in 2017, but sought to withdraw his plea as new details emerged of prosecutorial irregularities. The recent release of exculpatory evidence suggested the FBI targeted Flynn after concluding there was no evidence with which to charge him with a crime prompted the department to announce last week it was dropping the case.
Democrats cried foul, and former President Barack Obama warned that “the rule of law is at risk.” Nearly 2,000 former federal prosecutors signed an open letter calling for Attorney General William Barr to resign. The mainstream media — including outlets that had enthusiastically promoted the false “Russia collusion” conspiracy theory — seemed to agree.
Accordingly, Judge Sullivan announced that he would allow outside interest groups to make their arguments in court regarding what he should do. He acknowledged in his order that allowing amicus briefs in a criminal case was rare:
JUST IN: Judge in FLYNN Case indicates he's going to set a schedule to receive briefs from interested parties regarding the effort by DOJ to drop the case. pic.twitter.com/hE7hWSOxzl
— Kyle Cheney (@kyledcheney) May 12, 2020
On Monday, a group calling itself the “Watergate Prosecutors” asked to file an amicus brief opposing the motion to dismiss. (Left-wing lawyers, including some who worked on the Watergate investigation of the 1970s, have formed a loose alliance throughout the investigation into “Russia collusion” and the later impeachment and trial of President Donald Trump.)
Flynn’s lawyer, Sidney Powell, filed a motion objecting to the attempt by the “Watergate Prosecutors” to file an amicus brief, noting that the court had rejected twenty-four previous attempts, and that allowing such briefs presented constitutional issues. regarding the separation of powers.
“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. For the Court to allow another to stand in the place of the government would be a violation of the separation of powers,” she argued.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). His new book, RED NOVEMBER, is available for pre-order. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.