Barr’s decision earlier this month to seek to drop the Flynn case prompted one career prosecutor to withdraw from the case and led to complaints from more than 2,000 former Justice officials that political influence was interfering in the handling of criminal prosecutions.
While prosecutors sometimes decide not to take a contested case to trial, Barr’s move to abandon the prosecution of Flynn was highly unusual because he had already pleaded guilty to a false statement charge brought by special counsel Robert Mueller back in 2017. Flynn reaffirmed his plea in front of Sullivan the following year.
Flynn’s lawyers hailed the decision to drop the case and, in a bid to clear the way for its dismissal, quickly withdrew pending legal motions alleging a wide range of misconduct by prosecutors.
However, Sullivan rebuffed the defense’s call to immediately conclude the case. Instead, he said he’d entertain friend-of-the-court submissions about what he should do. In addition, he tapped a former federal judge in New York — John Gleeson — as a court-appointed amicus to advise him on next steps.
Sullivan also signaled that he was considering contempt of court or perjury charges against Flynn relating to the reversal of his earlier statements under oath that he was guilty.
McConnell’s remarks Tuesday dovetailed with an ongoing effort by Trump and his allies to accuse senior officials in President Barack Obama’s administration, including Obama and Vice President Joe Biden, of unspecified crimes in connection with efforts to investigate alleged ties between the 2016 Trump campaign and Russia.
“Certainly, you would think the outgoing Obama administration should only have used the awesome power of the federal government to pry into their political rivals if they had a slam-dunk basis for doing so. But that is not what they had,” the majority leader said.
McConnell’s comments come after the president urged the Senate leader to embrace his accusations against the Obama administration.
“Time is running out. Get tough and move quickly, or it will be too late. The Dems are vicious, but got caught,” Trump tweeted over the weekend. “They MUST pay a big price for what they have done to our Country. Don’t let them get away with this!”
In a separate tweet, Trump wrote: “The Republicans must play by the same rules, or die!”
McConnell’s rhetoric drew a rebuke from Minority Leader Chuck Schumer, who said his GOP counterpart was ignoring the urgent problems caused by the coronavirus pandemic, while amplifying a “wild conspiracy theory aimed at somehow smearing the fine reputation that President Obama has well deserved.”
“Leader McConnell, stop listening to President Trump and his wild theories and listen to the American people. We need action. We need action now,” Schumer said.
Schumer said McConnell’s remarks and recent investigative moves by two Senate committees are efforts to bolster Trump’s re-election campaign by giving an air of validity to bizarre rants and obsessions.
“Senate Republicans are using their majority to pursue the president’s political agenda in a time of national crisis,” the minority leader said. “The president is tweeting insane conspiracy theories, demanding that his water carriers on Capitol hill make them look legitimate.”
Suspense over the Flynn case seems likely to continue into the height of the presidential campaign season.
Gleeson, the court-appointed amicus, has asked to have until June 10 to prepare a brief opposing the government’s motion to dismiss the case. Other outside groups and individuals are also seeking to present written arguments to the court and Gleeson said he wants to respond to those.
Sullivan has yet to lay out a timeline or propose a date for a hearing on the motion, but the process seems likely to take at least a couple of months—unless Trump steps in with a pardon.
Among the groups lining up to try to influence Sullivan’s decision in the legal free-for-all over the Flynn case are at least two batches of former federal prosecutors and a set of Republican state attorneys general.
“This Court has no say in the federal government’s decision not to prosecute,” 15 GOP attorneys general argued in a brief released Tuesday but not immediately docketed by the court. “Simply put, the decision not to pursue a criminal conviction is vested in the executive branch alone—and neither the legislature nor the judiciary has any role in the executive’s making of that decision.”
The Republican officials’ brief, which did not address the question of whether Flynn committed perjury in Sullivan’s courtroom, urged the judge to grant the motion to dismiss without opining on the wisdom or fairness of Barr’s decision.
“The Court should leave the commentary to the commentariat,” the brief argues.
Meanwhile, hundreds of former federal prosecutors are signing on to a draft brief that urges Sullivan to reject the Justice Department’s motion and proceed to sentence Flynn.
“The Court need not ‘compel the government to proceed’ any further with this case… because the government has already reached the end of the road: It has already secured the defendant’s guilty plea—twice,” says, the brief, according to a copy first published by the Washington Post.
Andrew Desiderio contributed to this report.