The Justice Department’s move to drop Michael Flynn’s case is on hold

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Former US National Security Adviser General Michael Flynn arrives at US District Court in Washington, DC, on December 18, 2018. | Saul Loeb/AFP via Getty Images

The judge wants to hear outside arguments, adding another twist to the Flynn saga.

The case of former National Security Adviser Michael Flynn has taken another strange twist. A week after the Justice Departments widely criticized move to drop Flynn’s guilty plea, the federal judge in the case has basically said: wait, not so fast.

US District Court Judge Emmet G. Sullivan said Wednesday he will allow others to submit outside arguments on the DOJ’s motion to dismiss Flynn’s 2017 guilty plea for lying to the FBI about his Russian contacts. Sullivan said he would set a date to hear these amicus (“friend of the court”) briefs.

This puts Flynn’s status temporarily in limbo, as Sullivan declines to immediately green light the Justice Department’s request. Sullivan doesn’t have a ton of leeway here, but since the circumstances are anything but ordinary, and he does have the ability to press the government on the reasoning for their about-face. Sullivan has not yet scheduled a hearing to listen to arguments from both the prosecution and defense, though it is within his power to do so.

Flynn’s attorneys objected to Sullivan’s move in a court filing. “This travesty of justice has already consumed three or more years of an innocent man’s life—and that of his entire family,” they wrote. “No further delay should be tolerated or any further expense caused to him and his defense. This Court should enter the order proposed by the government immediately.”

It is still unlikely this will ultimately change Flynn’s fate, but it does drag out this more than two-year-old case a little bit longer. And given the politically charged, and bizarre, nature of Flynn’s case, Sullivan is, at least, clearing the way for arguments against the Justice Department’s actions, as criticism for its reversal on the Flynn matter has come from everyone from former federal prosecutors to a former president.

The many twists and turns of Flynn’s case

Flynn pleaded guilty in December 2017 to making false statements to federal law enforcement about his communications with Russian Ambassador Sergey Kislyak in December 2016 about sanctions imposed by Barack Obama’s administration.

When FBI agents asked him about those conversations in early 2017, Flynn denied that he’d brought up sanctions. Prosecutors also found evidence that Flynn may have broken the law elsewhere, including for failing to register as a foreign lobbyist, but prosecutors charged him with that one count of lying to the FBI in former special counsel Robert Mueller’s investigation.

As part of his plea deal, Flynn agreed to cooperate with Mueller’s team and prosecutors initially praised his cooperation. But when it came time for Flynn’s sentencing in December 2018, the former national security adviser reversed course and suggested he’d been railroaded by prosecutors.

Judge Sullivan appeared irked by Flynn’s attitude shift, and at the time, Sullivan spoke harshly about Flynn’s conduct, suggesting that he’d “sold his country out.” Judge Sullivan then asked if Flynn would prefer to delay sentencing to get the full credit for his cooperation, which he postponed for 2019.

But Flynn’s legal team continued, eventually trying to rescind his guilty plea altogether. This time, though, Flynn had a sympathetic ear in the Justice Department — Attorney General Bill Barr, who’s made no secret of his skepticism of the Russia probe. He appointed an outsider prosecutor to review Flynn’s case, and, in the process, uncovered internal FBI documents and what he saw as mistakes and missteps, and recommended the case be dropped.

Last week, the Justice Department filed a motion to do so, essentially siding with the defense that the investigation was questionable, and “would not serve the interests of justice.”

None of the prosecutors who worked on Flynn’s prosecution signed the motion to dismiss the case against him, and one of the lead prosecutors withdrew from the case altogether. Sixteen former Watergate prosecutors have also submitted a filing arguing against the Justice Department’s decision. (Sullivan has denied the brief, though it appears to be a scheduling issue.)

Bill Barr’s Justice Department has previously moved to intercede in cases of Trump’s former associates, most notably that of Roger Stone, who was convicted for lying to Congress in a trial last year. And Flynn did lie to FBI agents — something he admitted to twice — raising questions of unequal treatment, especially if certain defendants happen to have the backing of the president of the United States.

Trump and his allies, who’ve long dismissed the Russia investigation as a “deep state” plot against the president, have cheered the Justice Department’s move and claimed that it somehow points to a vast conspiracy by the Obama administration to frame Flynn and undermine the president.

But Flynn — and Barr’s Justice Department — are not off the hook just yet. Sullivan can still hear outside arguments and, if he chooses, question government prosecutors on their decision to drop the case. Whether that will change the outcome of the Flynn case seems less clear; the president himself said last week that though he’s not a judge, “he has a different type of power” — an apparent reference to his ability to pardon.

“But I don’t know that anybody would have to use that power,” Trump added. “I think he’s exonerated.”

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