Democrats on the House Judiciary Committee jumped into the Michael Flynn case Wednesday, filing an amicus curiae (“friend of the court”) brief arguing for why Judge Emmet Sullivan should not sign off on the Justice Department’s motion to dismiss the case.
The committee claimed that the DOJ’s decision had signs of “corruption” and was influenced by President Trump. The brief cited the case against former Trump associate Roger Stone and the Mueller report as evidence for why further examination of the department’s action was needed.
“Few things are more corrosive to the rule of law — and the public’s confidence in the criminal justice system — than the injection of partisanship, favoritism or corruption into prosecutorial decisions,” the brief said. “In this case, the impropriety is barely concealed.”
The court filing followed another brief by retired Judge John Gleeson, who Sullivan appointed to file a brief on the issue. Both briefs cited language in the Federal Rules of Criminal Procedure that says case dismissals may be requested “by leave of court” in claiming that not only was judicial oversight of the DOJ’s motion permitted, but necessary.
“When considered in light of the well-established supervisory role of federal courts, the history of Rule 48(a)’s enactment powerfully demonstrates that Rule 48(a) contemplates a role for the federal judiciary in detecting — and preventing — politically motivated dismissals of criminal charges,” the Democrats argued.
They went on to claim that Attorney General Bill Barr’s history makes review of the motion an even greater importance. They cited Barr’s summary of the Mueller report that Democrats said “clearly minimized the Special Counsel’s findings about the president and his associates,” the decision to reverse course regarding the DOJ’s sentencing recommendation for Trump adviser Roger Stone and Barr’s failure to testify before them to address these matters.
“And, here, the need for judicial oversight is even more pronounced because Attorney General Barr has stonewalled congressional oversight at every turn,” the brief said, “depriving the House Judiciary Committee of any opportunity to question Barr about his mischaracterization of the Mueller Report, his role in the sentencing of Roger Stone, or the policies he has put in place to facilitate the improper politicization of prosecutorial decisionmaking.”
The committee referenced Trump’s statements in support of Stone prior to the DOJ’s change in sentencing recommendations and in support of Flynn prior to the motion to dismiss as evidence that the DOJ’s decision was politically influenced.
"The Department’s decision to request dismissal of this case is thus the latest in a series of decisions that 'represent a systemic breakdown of impartial justice at the Department of Justice and suggest overt political bias, including corruption,'” they said.
Still, they recognized the possibility that there was nothing wrong with the motion to dismiss, and called for a hearing so the judge could take a closer look.
“There may be a perfectly legitimate explanation for the government’s change of heart. But the facts currently available to the public, the Committee, and this Court evoke corruption,” they concluded. “Without an evidentiary hearing, this Court — and the American people — can only speculate about the true reasons underlying the department’s decision.”
The DOJ moved to dismiss the case against Flynn -- Trump's first national security adviser who pleaded guilty to lying to the FBI before trying to withdraw that plea -- claiming the FBI interview was "conducted without any legitimate investigative basis."
The motion to dismiss came after unsealed FBI notes revealed that there had been a question regarding what the purpose of Flynn’s interview was: whether the aim was to find out the truth or to get him to lie and thus subject him to being prosecuted or fired. Flynn ended up facing charges and being terminated from the NSA job.
"General Flynn was set up by the Comey cabal," a Republican spokesperson for the Judiciary Committee said in a statement in response to the brief. "It’s amazing how House Democrats, who were once so concerned about civil liberties, are willing to ignore their principles for sake of their obsession with removing President Trump from office and destroying the lives of his associates."
In a tweet following the filing of the brief, Committee Chairman Rep. Jerrold Nadler, D-N.Y., accused Barr of politicizing the Justice Department and called the motion to dismiss “flagrant in its injustice.”
Fox News reached out to the Justice Department for comment, but they did not immediately respond.
In an interview with Fox News’ Bret Baier, though, Barr claimed that Sullivan was encroaching on the Justice Department’s authority.
“The argument is that it's always been understood that decisions whether to pursue an individual through the prosecution process or holding them criminally accountable is vested in the executive branch and not the courts,” Barr said. “And he is essentially, in our view, trying to set himself up as an alternative prosecutor.”
Before any evidentiary hearing takes place, the D.C. Circuit Court of Appeals will hear oral arguments Friday over whether Sullivan can refuse to grant the motion. Flynn asked the Circuit Court for a writ of mandamus – in which the higher court orders the lower court judge to fulfill their duties – that would force Sullivan to grant the dismissal.
Sullivan said in a court filing that mandamus is inappropriate at this stage because there remains the possibility he could still dismiss the case on his own.