Judge in Flynn case takes unusual step of allowing 3rd party briefs

Sullivan's order signals his interest in hearing from parties outside the Justice Department and Flynn’s attorneys before making a decision in the case.
Image: Retired Lt. Gen. Michael Flynn boards an elevator at Trump Tower
Retired Lt. Gen. Michael Flynn boards an elevator at Trump Tower in New York on Jan. 4, 2017.Jabin Botsford / The Washington Post via Getty Images file

Breaking News Emails

Get breaking news alerts and special reports. The news and stories that matter, delivered weekday mornings.
SUBSCRIBE
By Tom Winter and Pete Williams

The federal judge overseeing the case involving retired Lt. Gen. Michael Flynn took the unusual step Tuesday night of inviting briefs from third parties, and he plans to setup a schedule soon to accept those filings.

Judge Emmet G. Sullivan said in a filing Tuesday he’ll allow individuals outside of the Justice Department and Flynn’s attorneys to submit filings in the case that might be able to provide the court with additional information or perspectives that might help him make a decision on whether to dismiss the charges against Flynn or let him withdraw his guilty plea.

Citing a 7th U.S. Circuit Court of Appeals case, Sullivan wrote that “an amicus brief should normally be allowed 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… 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.”

Attorney General William Barr directed federal prosecutors last week to abandon their prosecution of Michael Flynn, who served briefly as national security adviser in the early days of the Trump administration. Flynn admitted that he had lied to the FBI about his conversations during the transition with Russia's ambassador to the U.S.

The Justice Department's decision drew intense criticism from nearly 2,000 former Justice Department and FBI officials on Monday, who signed an open letter strongly critical of Barr's decision to abandon the prosecution of Michael Flynn, calling the action "extraordinarily rare, if not unprecedented."

If anyone else who is not a friend of the president "were to lie to federal investigators in the course of a properly predicated counterintelligence investigation, and admit we did so under oath, we could be prosecuted," the letter said.

Judge Sullivan wrote that, “given the current posture of this case,” he anticipates “individuals and organizations” to file legal briefings and letters, which are almost always made public.

A group of former federal prosecutors is planning to file an amicus brief as soon as the end of this week, NBC News has learned.

Tuesday's order underscore how unusual the step is and notes that in a criminal case there are no D.C. federal court rules governing these submissions. He also cautioned those who wish to file, citing what Judge Amy Berman said in the case of Roger Stone, “while there may be individuals with an interest in this matter, a criminal proceeding is not a free for all."

Still, Sullivan's order signals his interest in hearing from those outside Justice Department and Flynn’s attorneys before making a decision in this case.

Sullivan also said Tuesday night that he has appointed a separate retired judge, John Gleeson, to present arguments in opposition to the Justice Department's request to dismiss the charges in the case.

Sullivan said that he wants Gleeson to address whether or not the court should explore the possibility that Flynn could be held in criminal contempt for perjury and whether the court should explore the possibility that Flynn lied to Sullivan.