May 19, 2020 - Politics & Policy

Michael Flynn's lawyers file petition to force judge to dismiss charges

Michael Flynn
Photo: Alex Wroblewski/Getty Images

Lawyers for former national security adviser Michael Flynn filed a writ of mandamus petition to the U.S. Court of Appeals in D.C. on Tuesday that would compel U.S. District Judge Emmet Sullivan to immediately grant the Justice Department's motion to dismiss charges.

Why it matters: Sullivan moved to put the DOJ's motion on hold last week to hear from outside parties that may seek to intervene through an amicus brief. He also appointed a retired judge to recommend whether Flynn should face a criminal contempt charge for perjury after he twice declared under oath that he had lied to the FBI before attempting to withdraw his guilty plea in January.

What they're saying:

  • "A district court cannot deny the government’s motion to dismiss because the judge has 'a disagreement with the prosecution’s exercise of charging authority,' such as 'a view that the defendant should stand trial' or 'that more serious charges should be brought,'" Flynn's lawyers argue.
  • "Nor should a court second-guess the government’s 'conclusion that additional prosecution or punishment would not serve the public interest.' ... The district court has no authority to adopt the role of prosecutor or change the issues in the case by inviting or appointing amici to perform the investigation or prosecution that the court deems appropriate."

The other side: University of Texas national security law scholar Steve Vladeck notes that the D.C. Circuit has "the highest bar to this kind of emergency (“mandamus”) relief of any court in the country" — and says that "there’s no precedent that Sullivan is 'clearly' violating by taking his time and entertaining amici in reviewing DOJ’s motion."

Read the petition.

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