Judge's lawyers hint at 'reason to question' DOJ's motives in new Michael Flynn case filing; DOJ fires back
https://www.foxnews.com/politics/judge-sullivans-lawyers-cite-unusual-developments-as-providing-reason-to-question-dojs-motion-to-dismiss
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Washington, D.C. District Court Judge Emmet Sullivan's lawyers issued an exceedingly rare response on his behalf to the D.C. Circuit Court of Appeals on Monday, explaining that the judge hadn't dismissed the case against former national security advisor Michael Flynn as requested by both federal prosecutors and Flynn's lawyers after a mountain of exculpatory information surfaced in part because "unusual developments" provided a "reason to question" the Justice Department's motives.
Minutes later, the DOJ submitted its own filing calling for the case to be dismissed, suggesting FBI agents may have manipulated a key document, and slamming efforts to keep the prosecution alive by doubting the DOJ's integrity. The appellate court had invited the DOJ to weigh in on the matter.
"This Court should issue a writ of mandamus compelling dismissal," the DOJ wrote in a filing signed by Solicitor General Noel Francisco, who ordinarily represents the government before the Supreme Court. Francisco's imprimatur was significant, and indicated the DOJ was taking Sullivan's actions seriously.
"Under Articles II and III of the Constitution, the power to prosecute belongs to the Executive, not the Judiciary," the government continued. "Federal Rule of Criminal Procedure 48, read against the backdrop of that constitutional principle, required the district court to grant the government's motion to dismiss the indictment with prejudice because that motion was unopposed."
That rule of procedure states: "The government may, with leave of court, dismiss an indictment, information, or complaint."
"That language does not authorize a court to stand in the way of a dismissal the defendant does not oppose, and any other reading of the Rule would violate both Article II and Article III," the DOJ said. "Nor, under the circumstances of this case, may the district court assume the role of prosecutor and initiate criminal charges of its own." Sullivan has floated the possibility of holding Flynn in contempt for perjury, based on his statements during his guilty plea to one count of making false statements to the FBI, which Flynn now seeks to retract.
The DOJ concluded: "The district court plans to subject the Executive's enforcement decision to extensive judicial inquiry, scrutiny, oversight, and involvement. Under the Supreme Court's and this Court's precedents, it is clear and indisputable that the district court has no authority to embark on that course."
The government's brief also suggested that the FBI agents who interviewed Flynn in the White House on January 24, 2017, anti-Trump agent Peter Strzok and mysterious, little-known FBI agent Joe Pientka, may have helped draft a false FD-302 witness report documenting the interview, which led to Flynn's prosecution for lying to federal agents.
Independent journalist Mike Cernovich flagged that the DOJ specifically noted "the agents' handwritten notes do not reflect" that they ever asked Flynn about whether he recalled a conversation in which Russia's ambassador "stated that Russia had taken the incoming administration's position into account when responding to [the Obama administration's] sanctions." Nevertheless, the FD-302 states that Flynn told the agents he "did not recall" such a conversation. (Flynn's lawyers have said that, if Flynn was hesitant to answer the agents, it was because he was concerned with disclosing classified materials to agents without the proper clearance.)
The government further cited Ninth Circuit precedent from the "United States v. Hector" case that "the government may move to dismiss even after a complaint has turned into a conviction."
The DOJ went on to warn that Sullivan and his appointed amicus "may not conduct evidentiary proceedings based on speculation about the government's motives."