Emmet Sullivan Tells Potential Amici Not to Bug Him Yet

We’ve been waiting for Emmet Sullivan’s response to the government’s motion to withdraw the Mike Flynn prosecution. Flynn filed to say they’d put all their other requests on ice in light of the government’s motion. Then today, they said — nudge nudge — they’d be happy with the government’s request.

Yesterday, Timothy Shea sort of cleaned up his mess with using Jesse Liu’s bar number to submit something utterly conflicting with what has previously been submitted under Liu’s bar number.

That revealed there’s a gap in the docket — someone did something under seal.

Finally, Sullivan just issued this order:

MINUTE ORDER as to MICHAEL T. FLYNN. 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 pursuant to Local Civil Rule 7(o). There is no analogous rule in the Local Criminal Rules, but “[the Local Civil] Rules govern all proceedings in the United States District Court for the District of Columbia.” LCvR 1.1. “An amicus curiae, defined as friend of the court,… does not represent the parties but participates only for the benefit of the Court.” United States v. Microsoft Corp., No. 98-cv-1232(CKK), 2002 WL 319366, at *2 (D.D.C. Feb. 28, 2002) (internal quotation marks omitted). Thus, “[i]t is solely within the court’s discretion to determine the fact, extent, and manner of the participation.” Jin v. Ministry of State Sec., 557 F. Supp. 2d 131, 136 (D.D.C. 2008) (citation and internal quotation marks omitted). “‘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 (though not enough affected to entitle the amicus to intervene and become a party 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. Otherwise, leave to file an amicus curiae brief should be denied.'” Id. at 137 (quoting Ryan v. Commodity Futures Trading Comm’n, 125 F.3d 1062, 1064 (7th Cir. 1997)); see also LCvR 7(o). Although there is no corollary in the Local Criminal Rules to Local Civil Rule 7(o), a person or entity may seek leave of the Court to file an amicus curiae brief in a criminal case. See Min. Order, United States v. Simmons, No. 18-cr-344 (EGS) (D.D.C. May 5, 2020); cf. United States v. Fokker Servs. B.V., 818 F.3d 733, 740 (D.C. Cir. 2016) (appointing amicus curiae in a criminal case). As Judge Amy Berman Jackson has observed, “while there may be individuals with an interest in this matter, a criminal proceeding is not a free for all.” Min. Order, United States v. Stone, No. 19-cr-18 (ABJ) (D.D.C. Feb. 28, 2019). Accordingly, at the appropriate time, the Court will enter a Scheduling Order governing the submission of any amicus curiae briefs. Signed by Judge Emmet G. Sullivan on 5/12/2020. (lcegs3) (Entered: 05/12/2020)

My guess is that someone submitted a sealed motion to file an amicus brief (as happened in the Stone case already, when some right wingers intervened on the jury challenge), and that this order is intended to lay out the basis under which Sullivan might entertain an amicus:

  • When a party is not represented competently or represented at all (as the government is not)
  • When an amicus has an interest in some other case that may be affected by this one
  • When an amicus has a unique perspective the lawyers in the case cannot offer

The other thing this means is that this is not done yet, and Sullivan is definitely not going to just dismiss this case.

Update: The potential amici are a group that Flynn’s lawyers call the Watergate Prosecutors. Their argument against intervention is bad, but not as bad as their normal work.

Update: Here’s the brief the Watergate Prosecutors submitted. They emphasize that once a guilty plea has been entered courts must be certain there is a basis in fact for overturning the verdict.

But the D.C. Circuit has explained, in a decision that the Government fails to cite, that “considerations[] other than protection of [the] defendant . . . have been taken into account by courts” when evaluating consented-to dismissal motions under Rule 48(a). United States v. Ammidown, 497 F.2d 615, 620 (D.C. Cir. 1973). Courts have exercised their authority under Rule 48(a) where “it appears that the assigned reason for the dismissal has no basis in fact.” Id. at 620– 21. Even when the Government represents that the evidence is not sufficient to warrant prosecution, courts have sought to “satisf[y]” themselves that there has been “a considered judgment” and “an application [for dismissal] made in good faith.” Id. at 620.

[snip]

No party before the Court will address the question whether the Government’s proffered reasons for dismissal have a “basis in fact,” Ammidown, 497 F.2d at 621, or other reasons that may lead the Court to conclude that it should not grant the Motion. The Watergate Prosecutors, for reasons set forth in the accompanying Statement of Interest, are uniquely suited to help ensure a fair presentation of the issues raised by the Government’s Motion, which include, without limitation, the accuracy of the facts and law presented in the Motion, the significance of the Defendant’s prior admissions of guilt and this Court’s orders to date, the Trump administration’s opposition to the prosecution of the Defendant, and whether the Government’s change of position reflects improper political influence undermining determinations made by the Special Counsel’s Office.

Meanwhile, CBS has released the full interview with Billy Barr, which makes it clear the only “new” facts he claims to be relying on are not: the FBI correspondence showing they almost closed but then reopened the case against Flynn (something that has been public since before the House Intelligence Committee Report came out), and the Bill Priestap notes showing deliberations on how to interview Flynn, which would have been reviewed in any of the four investigations of those meetings.

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50 replies
  1. Rugger9 says:

    So, the next useful questions are the timelines for submission and eventual ruling (who filed docket 201 will be revealed in due course and not as important as the delay). I would agree that this signals no acceptance of Barr’s withdrawal gambit, but are there alternative methods Barr could use to yank this out of Judge Sullivan’s court if rulings and motions are still pending? I get the sense that the WH wanted this settled out quickly (otherwise why “with prejudice”?) but this minute order will extend things into the summer at least with all of the bad press to come from discussion over what Flynn was doing and for whom.

    • Peterr says:

      “With prejudice” means that a future prosecutor cannot refile the case. This is critical to Barr and Trump so that no one can come back after January and go after Flynn again.

      The quickly part was because Covington (Flynn’s former lawyers) was all set to open their files in defense against Flynn’s charges of ineffective assistance of counsel, and that was going to really open a can of worms as far as Barr goes.

      • lyndsay levy says:

        I am completely ignorant of the law, so has Flynn filed a suit against Covington? would this dismissal negate that suit? can they still open those files ?

        • Peterr says:

          No, there is no lawsuit, but it’s central to Flynn’s attempt to get out of his guilty plea.

          In asking Sullivan to set aside his initial guilty plea, Flynn’s current lawyer said in essence, “He only agreed to plead guilty because his former counsel did not provide him with adequate representation.” She alleged that they had conflicts of interest which led them not to put Flynn’s interests first. Covington, in turn, has said they absolutely did put his interests first, and to the extent that there were any possible conflicts, they were disclosed to Flynn and he waived any objection to them.

          To assess the merits of Powell’s argument, attorney-client privilege between Flynn and Covington would be waived and documents would need to be given to Sullivan, and that was on the verge of happening when Shea filed this motion to have all the charges dropped.

          Here’s a taste from a longer post on this from Marcy:

          Of particular note, on Friday, prosecutors would have submitted a filing explaining what they planned to do with the 600 pages they had received from Covington & Burling elaborating on documents already public that show Flynn didn’t fully disclose things he later admitted to under oath. Given what was already public — which showed that even Flynn’s sworn declaration in his motion to dismiss did not accurately present Covington’s representation — those documents, if made public, would likely be very damning to Flynn.

          By “on Friday” Marcy meant last Friday.

  2. earlofhuntingdon says:

    Regarding competent counsel, Flynn is represented by counsel of his choice; his prior counsel was competent and he twice pled guilty. The government is represented by competent but evil-minded counsel. The inadequacy of its briefs is not a function of its competence, but of its political subservience. Former government counsel, too, was competent, and twice obtained guilty pleas from the defendant.

    Regarding those representing interests who might be affected by this case, besides the government and defendant, someone representing Trump (besides Bill Barr) might want to weigh in on his behalf. Trump probably rightly thinks his ass is hanging in the wind if Flynn were sentenced to serious prison time (previously unlikely). But it’s not obvious that that interest is sufficient to file an amicus. The lawyers in this case – though not the ones currently participating in it – have offered relevant perspective on the interests at issue.

    The unique perspective Sullivan might want to hear from is someone interested in enforcing the law without fear or favor.

    • Peterr says:

      The government is represented by competent but evil-minded counsel

      This assumes facts not in evidence.

      I refer you to the last filing, which misrepresented basic facts already in evidence before the court, as well as the misuse of another attorney’s Bar number.

      I would be willing to grant you the evil-mindedness, but not the competence.

      • earlofhuntingdon says:

        Read the next sentence: “The inadequacy of its briefs is not a function of its competence, but of its political subservience.”

        • Peterr says:

          I didn’t say that the brief proved incompetence, but rather the opposite: it put evil-mindedness ahead of competence. The evilmindedness becomes apparent through the political subservience that dictates putting the end result (“. . . so these charges must be dismissed with prejudice.”) ahead of anything else, like the evidence already before the court.

          But on the other hand, I would say that using your predecessor’s bar number says that you’re incompetent in your subservience.

          • 200Toros says:

            I love your turn of phrase here: “you’re incompetent in your subservience.”

            This should be a constant rejoinder for every WH reporter in responding to any statement from anyone working for trump. Or to any MAGAt saying pretty much anything. His new press secretary comes to mind immediately, a more subservient sycophant would be hard to find…

  3. vvv says:

    How’s about Flynn, Jr.?

    I shouldn’t joke, I think I see this as a promising thing that may allow the public to learn a lot more about the underlying crimes and the criminals (note that the plural is intentional) involved.

  4. Alan says:

    Marcy – have you considered filing an amicus. I look forward to seeing your work. You can file an affidavit and a friendly attorney can act as your counsel.
    Best.

    • Rugger9 says:

      If the amicus was from the ~2000 DOJ alums I could agree with the idea, but I do not recall anyone saying who said what in Docket 201.

      With that said, I was wondering whether AG Barr could pull this matter out of Judge Sullivan’s court or will he have to wait until this set of motions and rulings play out. The reason is that these will briefs and following hearing(s) will delay the process past any timeline that doesn’t end right before the election in November with lots of inconvenient truths being revealed.

  5. earlofhuntingdon says:

    The amicus issue Sullivan raises adds a few months before this case moves on to the inevitable appeals process. Trump can hear January 20th approaching as if he were Capt. Hook, and the Flynn case was Tick-Tock, the croc who swallowed the clock. The West Wing might wish Jared’s Project Airbridge actually did something besides enrich a few cronies: at this rate, it’s likely to run out of TP long before January 20th.

    • BroD says:

      Thanks for noting the calendar context. Am I correct in thinking the facts and arguments in the case might seem somehow clearer in the dawn’s early light on 1/20/21?

  6. Physicalist says:

    Here’s my question: Is it true that Shea’s appointment going to expire in early June? And if so, and if the courts can appoint a new U.S. Attorney for D.C. (which I believe I read), then does dragging this out a few weeks open the possibility that the “government” reverses itself again?

  7. earlofhuntingdon says:

    Zoe Tillman reports that Flynn’s lawyers filed an objection to a request by a group called the “Watergate Prosecutors” to file an amicus brief. The name calls to mind Jill Wine-Banks. If the name is not Orwellian, it suggests the brief would stand in place of the one Barr refuses to let his career attorneys file. If Sullivan allows them to file a brief, it’s not likely to be comfortable reading for Powell, Flynn, or Don Trump.

    https://twitter.com/ZoeTillman/status/1260360386592866304

      • ThreeDayCondor says:

        Jill Wine-Banks is specifically identified, in an EW tweet, post this…

        Even so, it is not clear to me in which filing, precisely EW found it — but she is listed — as among these “ex-Watergate Prosecutors”.

        Onward.

    • harpie says:

      From Tillman’s link:

      […] 2. Separation of Powers Forecloses Any Third-Party Filing in This Case and Court. It is no accident that amicus briefs are excluded in criminal cases. A criminal case is a dispute between the United States and a criminal defendant. There is no place for third parties to meddle in the dispute, and certainly not to usurp the role of the government’s counsel. For the Court to allow another to stand in the place of the government would be a violation of the separation of powers. See Morrison v. Olson, 487 U.S. 654 (1988), holding that courts cannot appoint executive officers and may only appoint special prosecutors in limited circumstances. […]

      LOL about usurping the role of government counsel—It seems like that role has already been abdicated by Barr.

    • FL Resister says:

      Wouldn’t it be great if George Conway Esq. was involved?
      “In a brief order, Judge Emmet G. Sullivan of the United States District Court for the District of Columbia said he would set a schedule for outside parties to present arguments about the government’s request to dismiss the case.” -The NY Times

    • jdmckay says:

      I like it. Ron Coleman’s “opinions” don’t align with Marcy’s bullet points Sullivan cited nor Sullivan’s statement indicating he will consider Amicus briefs.

      Maybe those 2000 US Attorneys will join in!!!

      Given tongue lashing Sullivan has given these attorneys to date, and given Timothy Shea did more or less this same thing w/Stone’s sentencing I can’t help wondering if Sullivan will question him wrt his filing being written/ordered by Barr. I am not a lawyer, but everything I read says this stuff never happens… eg. this seems like extraordinary circumstance.

    • harpie says:

      Via Marcy, Politico got the filing:

      https://twitter.com/kyledcheney/status/1260393933961596928
      10:18 PM · May 12, 2020

      UPDATE: We have the filing that appears to have prompted Judge Sullivan to pursue a schedule for receiving briefs — it’s from 16 former Watergate prosecutors.

      The filing: https://politico.com/f/?id=00000172-0b9e-dc3e-aff6-0f9f35990000

      The Watergate prosecutors argue that once a guilty plea is accepted, as it was for Flynn, it’s final and becomes the juridiction of the courts. They intend to file an amicus brief presenting this argument more fully by May 21.

      Here’s the list of Amici:

      1. The Watergate Prosecutors are:
      Nick Akerman, Richard Ben-Veniste, Richard J. Davis, Carl B. Feldbaum, George T. Frampton, Jr., Kenneth S. Geller, Gerald Goldman, Stephen E. Haberfeld, Henry L. Hecht, Paul R. Hoeber, Philip Allen Lacovara, Paul R. Michel, Robert L. Palmer, Frank Tuerkheimer, Jill Wine-Banks, and Roger Witten. Their qualifications and interest in this matter are summarized in an attachment to this notice.

      • harpie says:

        Marcy tweets that this is the key paragraph, which “Flynn fails to address”:

        But the D.C. Circuit has explained, in a decision that the Government fails to cite, that “considerations[] other than protection of [the] defendant . . . have been taken into account by courts” when evaluating consented-to dismissal motions under Rule 48(a). United States v. Ammidown, 497 F.2d 615, 620 (D.C. Cir. 1973). Courts have exercised their authority under Rule 48(a) where “it appears that the assigned reason for the dismissal has no basis in fact.” Id. at 620–21. Even when the Government represents that the evidence is not sufficient to warrant prosecution, courts have sought to “satisf[y]” themselves that there has been “a considered judgment” and “an application [for dismissal] made in good faith.” Id. at 620.

  8. Jeff says:

    Is it possible Sullivan realizes he doesn’t have much room to refuse the dismissal, but he can run the clock until there’s a new President and AG? Allow amici to file briefs, get responses from the gov and defense counsel, hold a few hearings. Next thing you know, it’s January 2020.

    • bmaz says:

      Sullivan has all the room in the world to deny dismissal if he wants to, it is completely in his discretion.

    • P J Evans says:

      I don’t think he can run the clock backward, but if he could, I’d suggest running it back to Oct 2016.

    • harpie says:

      This is from the other day:
      Mark Zaid
      https://twitter.com/MarkSZaidEsq/status/1258819402629353478
      2:01 PM · May 8, 2020

      #Mueller needs to break his silence.
      “It’s not just that Bob Mueller should speak out, it’s how can he not speak out” [link]

      [links to]:
      Ukraine Whistleblower’s Lawyer Calls for Mueller to Speak Out About Michael Flynn — and Much More
      https://lawandcrime.com/high-profile/ukraine-whistleblowers-lawyer-calls-for-mueller-to-speak-out-about-michael-flynn-and-much-more/
      Matt Nathan 1:42 pm, May 8th, 2020

      • vicks says:

        The whole Mueller -boy scout thing drives me crazy.
        I (intellectually) understand it’s what gives his work credibility, but I can’t help but imagine Mueller is suffering the effects of the the same sort of cognitive dissonance that so many in the republican party are accused of.
        Different scenarios of course, but all are fighting the battle between their belief systems and the harm to individuals and our country that they are allowing (or inflicting) because of it.
        While I still don’t have my head around the whole thing, when I heard Sullivan was doing a shout out to “friends of the court” my thinking went straight to Mueller.
        Mueller does not appear to be a shallow man and MHO if he’d been looking for a crack that would allow him (in his mind) a more public voice, I fear that he would have found one already.
        For the sake of our country, I can only hope that I am wrong.

        • harpie says:

          That [especially the first paragraph] perfectly describes how I’m feeling.

          all are fighting the battle between their belief systems and the harm to individuals and our country that they are allowing (or inflicting) because of it.

          I’m SO DONE with them.

    • harpie says:

      This is from Jonathan Kravis

      I left the Justice Department after it made a disastrous mistake. It just happened again.
      https://www.washingtonpost.com/opinions/2020/05/11/i-left-justice-department-after-it-made-disastrous-mistake-it-just-happened-again/
      Jonathan Kravis May 11, 2020 at 9:00 a.m.
      [Jonathan Kravis was a federal prosecutor for 10 years.]

      […] Barr’s decision to excuse himself from these obligations and attack his own silenced employees is alarming. It sends an unmistakable message to prosecutors and agents — if the president demands, we will throw you under the bus.

      The dedicated public servants who remain cannot respond publicly to those who claim that the department acted appropriately in these cases. But I can, and I say this. […]

    • harpie says:

      The Flynn case isn’t over until the judge says it’s over
      https://www.washingtonpost.com/opinions/2020/05/11/flynn-case-isnt-over-until-judge-says-its-over/
      John Gleeson, David O’Neil and Marshall Miller
      May 11, 2020 at 6:52 p.m. EDT
      [John Gleeson served as a U.S. district judge for the Eastern District of New York and chief of the Criminal Division in the U.S. Attorney’s Office in that district. David O’Neil served as the acting assistant attorney general for the Justice Department’s Criminal Division and assistant U.S. attorney in the Southern District of New York. Marshall Miller served as the highest-ranking career official in the Criminal Division and as chief of the Criminal Division for the U.S. Attorney’s Office for the Eastern District.]

      […] Fortunately, the court has many tools to vindicate the public interest.

      It can require the career prosecutor to explain why he stepped off the case […]
      It can appoint an independent attorney to act as a “friend of the court,” […]
      And the court could compel the department to reveal the one thing it has thus far refused to show — the actual evidence underlying the prosecution. [Flynn/Kislyak transcripts] […]

      By ordering disclosure of the transcripts, the court can empower the American public to judge for itself— and assess why the department is trying to walk away from this important case.
      […]

  9. joel fisher says:

    Question: what is the extent to which Sullivan’s inquiry survives the pardon/clemency that Trump seems likely to extend to Flynn in the next few days? I admit I don’t know, but I’m afraid the answer is: not much. Trump can tell Barr–not that he would need much telling–to ignore Sullivan’s Orders. I know; not “ignore”, but file a bunch of crap utterly non-responsive to the Order. A lecture on checks and balances lifted from Wikipedia; stuff from their Con Law notes, etc.

  10. madwand says:

    I was wondering to whose advantage delaying is, because I’ve seen different takes on that here, however, the quick filing opposing the amicus brief from Flynn’s lawyers tells it all. There is obvious political pressure to end this case as soon as possible. The quick filing tells me also that they were prepared for something like this and probably have more cards to play. Speed is of the essence therefor or the grift won’t succeed.

    • bmaz says:

      Filing was not that lightning fast at all really, and they had already done much of the work when they collaborated on a previous op-ed piece. Not to mention that, although this one was well done, the “filing was just a motion for leave to file. Nothing earth shattering yet.

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