The judge in the Michael Flynn case has gone full activist – refusing to dismiss the case after the Department of Justice requested to drop charges so that an outside party could file an opposition briefing known as a “friend-of-the-court”, or “amicus” briefing.
Today, Judge Emmet Sullivan took things one step further, appointing former Gotti prosecutor and judge, John Gleeson, to argue against the dismissal and to determine whether Flynn should be held in contempt for perjury.
New Flynn Filing –
Judge Sullivan appoints retired Judge John Gleeson as amicus “to present arguments in opposition to the govt’s motion to dismiss”
Sullivan – also orders Gleeson to address whether the Court should hold Flynn in contempt for perjury. pic.twitter.com/hAedW6BrSP
— Techno Fog (@Techno_Fog) May 13, 2020
As we noted earlier, What makes it bizarre is that the Judge, Emmet Sullivan, denied this type of third party intervention 24 times during the case – yet has suddenly changed his mind after an activist group which calls itself the “Watergate Prosecutors” moved to file an amicus brief, according to the Washington Examiner.
And as Trump ally and attorney Victoria Toensing noted, the Supreme Court ruled last week that entertaining outside interventions such as these was a “drastic departure” and an “abuse of discretion.”
Does Judge Sullivan read SupCt decisions? Last week SupCt held using amici was “drastic departure” and “abuse of discretion.” Why amici for @GenFlynn now when Judge refused Flynn friends amici 24 times. Judge shld be removed from case…then from Bench. #obamagate #maga
— Victoria Toensing (@VicToensing) May 13, 2020
To the casual observer, between Flynn’s first legal team (from Eric Holder’s law firm) and Judge Sullivan exposing himself with these bizarre 11th hour decisions, one could reasonably conclude that the fix was in on Flynn, until he swapped legal teams and Trump found an Attorney General with a spine.
Flynn’s lawyer, former federal prosecutor Sidney Powell, filed a six-page motion Tuesday evening slamming the decision, writing: “This Court has consistently — on 24 previous occasions — summarily refused to permit any third party to inject themselves or their views into this case,” adding “the proposed amicus brief has no place in this court.”
“No rule allows the filing, and the self-proclaimed collection of ‘Watergate Prosecutors’ has no cognizable special interest,” the filing continues. “Separation of powers forecloses their appearance here. Only the Department of Justice and the defense can be heard.”
Powell told the Washington Examiner that the judge had denied all previous third-party interventions “until DOJ moves to dismiss and begins to expose the wrongdoing of the Obama administration.”
Flynn’s lawyers have touted recently released FBI records as being exculpatory evidence that was concealed from the defense team. The documents suggest that now-fired FBI agent Peter Strzok and the FBI’s “7th floor” leadership stopped the bureau from closing its investigation into Flynn in early January 2017, even though investigators had uncovered “no derogatory information,” after intercepts of Flynn’s communications with a Russian envoy emerged. Emails from later that month show Strzok, along with then-FBI lawyer Lisa Page and several others, sought out ways to continue investigating Flynn, including by deploying the Logan Act. –Washington Examiner
On Tuesday, Sullivan wrote in his order that “given the current posture of this case, the Court anticipates that individuals and organizations will seek leave of the Court to file amicus curiae briefs,” adding – while quoting Roger Stone judge Amy Berman Jackson (there’s a clue) in saying that “while there may be individuals with an interest in this matter, a criminal proceeding is not a free for all.”
“Accordingly, at the appropriate time, the Court will enter a Scheduling Order governing the submission of any amicus curiae briefs.“
Earlier in the case, however, Sullivan wrote of similar amicus brief requests: “The Federal Rules of Criminal Procedure do not provide for intervention by third parties in criminal cases … Options exist for a private citizen to express his views about matters of public interest, but the Court’s docket is not an available option,” adding “the docket is the record of official proceedings related to criminal charges brought by the United States against an individual who has pled guilty to a criminal offense” and “for the benefit of the parties in this case and the public, the docket must be maintained in an orderly fashion and in accordance with court rules.”