Fact Check: Can Judge Sullivan Refuse to Dismiss Flynn Case?

Fact Check: Can Judge Sullivan Refuse to Dismiss Flynn Case?

(RightWing.org) – Last week, the Department of Justice (DOJ) filed a motion to dismiss the flawed case against former National Security Adviser Michael Flynn. Documents released by the court revealed senior members of the FBI attempted to set up Flynn to either prosecute him or get him fired. Since the motion was filed, Judge Emmet Sullivan has thrown up a roadblock, even though both the prosecution and defense agree to the dismissal.


As of Thursday morning, Judge Sullivan has not agreed to dismiss the case against Flynn. Instead, he made the highly unusual move to accept amicus briefs. This is interesting considering Sullivan, a trial judge, denied them in 24 different cases. Amicus briefs are usually used in appellate courts. Already, 16 former Watergate prosecutors, including several Democratic donors and others critical of President Trump, have asked to weigh in on the case.

The question remains, can Sullivan ignore the DOJ’s dismissal against Flynn and proceed with the prosecution? If so, what are the consequences?

According to former federal prosecutor Andrew McCarthy, four facts should govern this case:

  1. The only branch of government, constitutionally, that can proceed with criminal prosecution is the executive branch.
  2. There’s clear prosecutorial misconduct that can’t hold up in a trial and ethically requires the dismissal.
  3. Since the DOJ has decided not to prosecute Flynn, Sullivan’s only constitutional role is to administratively end the case on the court’s records.
  4. The role of the judiciary is to “protect the accused from overbearing government action.”

Universally, law scholars agree as a judge, Sullivan doesn’t have the authority to try Flynn nor ignore the DOJ’s dismissal request. However, that may not ultimately be Sullivan’s end game. Not only is he going to allow a circus through the amicus briefs, but he’s also appointed a retired judge who’s highly critical of the Trump administration to argue against dismissal and determine if Flynn committed perjury by retracting his initial guilty plea.

George Washington University Law Professor Jonathan Turley argues charging someone with perjury for changing a plea deal sets a terrible precedent. The perjury claim could then be made against thousands of defendants who withdraw pleas or experience prosecutorial abuse and ask for their cases to be dismissed.

Second, Turley argues that Sullivan knows the DOJ is not going to prosecute Flynn for perjury. However, according to Criminal Procedure Rule 42, if the government declines to prosecute, the court can appoint another attorney to do it. However, Rule 42 was put in place to prevent the very thing that’s happening to Flynn.

In essence, Judge Sullivan knows he has no authority to stop the DOJ from dismissing the case. So, why is he fishing to find a way to get Flynn? In 2018, Sullivan said Flynn “sold his country out” and asked prosecutors if they were willing to consider charging Flynn with treason He further said, “I’m not hiding my disgust, my disdain, for this criminal offense.” In this case, Sullivan’s motive is all in the open now.

It seems the Flynn case isn’t done setting precedents just yet. Stay tuned for updates and new information as it becomes available.

By Don Purdum, Freelance Contributor

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