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Judge In Flynn Case Invites Briefs Without Ruling On Feds' Dropped Charges

Former national security adviser Michael Flynn arrives at U.S. District Court in Washington, D.C., in 2018.
Saul Loeb
AFP via Getty Images
Former national security adviser Michael Flynn arrives at U.S. District Court in Washington, D.C., in 2018.

The judge handling the case of former national security adviser Michael Flynn is asking for opinions about what he should do now that the Justice Department wants to drop its prosecution of Flynn.

Judge Emmet Sullivan issued an order on Tuesday soliciting "friend of the court" briefs but did not address the government's reversal or suggest when he might.

Sullivan's order did mention that such filings, known within the legal world as amicus briefs, are appropriate in situations when "the amicus has an interest in some other case that may be affected by the decision in the present case."

That suggests the U.S. District Court judge wants to hear from those who say they would be affected by the precedent that might be set by the Justice Department's decision not to go forward with its case about Flynn's lies to the FBI — even following Flynn's admissions and guilty plea in the matter.

Criticism over independence

Critics have said Attorney General William Barr has sabotaged the Justice Department's ostensible independence from the White House by interceding in cases involving friends of President Trump — first with Trump's friend Roger Stone and now with Flynn.

There also are questions about evidence yielded from Flynn that investigators and prosecutors had used in other aspects of special counsel Robert Mueller's investigation into Russian interference in the 2016 election. Flynn cooperated with authorities for more than 60 hours' worth of interviews in exchange for the comparative leniency of the charges he faced.

Now that the government is abandoning Flynn's case, what significance does that have for the other prosecutions? Attorneys could make presentations to Sullivan about that in their amicus briefs.

Trump, Barr and many Republicans have called the Flynn prosecution invalid based on subsequent revelations about the conduct of officials and investigators in the matter.

A Justice Department filing that announced the abandonment of charges argued that Flynn's guilty plea was void because the lies he told the FBI weren't material to what the brief called a "bona fide investigation."

Flynn already had sought to withdraw his guilty plea in a filing to Sullivan after his relations soured with the government. Flynn and his attorneys had fought to obtain notes from FBI officials involved with his interview that, once revealed, helped shift the political environment for his case.

Intelligence intrigue

That new landscape also has coincided with the presence of a politically friendly acting director of national intelligence, Richard Grenell, who reportedly has been working within the intelligence bureaucracy to uncover more information about the Flynn case.

According to reports, Grenell has given the Justice Department the names of the people in the administration of President Barack Obama who asked to see Flynn's name in the intelligence reporting about conversations taking place with Russia's then-ambassador to the United States.

Such targets are regularly monitored inside the U.S., which is how the FBI and Justice Department knew that Flynn's public accounts of his talks with the ambassador didn't match what had really transpired.

During the final days of the Obama administration, a White House official sought to "unmask" Flynn's name and revealed it to The Washington Post. That official has never been publicly identified, but Trump and Republicans have fulminated ever since about the incident, which they call an abuse of intelligence power.

It isn't clear whether the Justice Department might take any action with the information reportedly supplied by Grenell, but those events unfolding behind the scenes took place at the same time Trump has suggested, without details, that Obama committed some crime that merits prosecution.

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Philip Ewing is an election security editor with NPR's Washington Desk. He helps oversee coverage of election security, voting, disinformation, active measures and other issues. Ewing joined the Washington Desk from his previous role as NPR's national security editor, in which he helped direct coverage of the military, intelligence community, counterterrorism, veterans and more. He came to NPR in 2015 from Politico, where he was a Pentagon correspondent and defense editor. Previously, he served as managing editor of, and before that he covered the U.S. Navy for the Military Times newspapers.