In a bizarre ruling on Tuesday, Judge Emmet Sullivan of the Washington D.C. District Court said that he would not approve the Department of Justice’s dismissal of the case against Michael Flynn until he’d collected amicus briefs from critics of the DOJ’s decision. In what amounts to a transparently political ruling against the Trump administration, Sullivan said that “the Court will enter a Scheduling Order governing the submission of any amicus curiae briefs.”
Flynn’s lawyers immediately filed a brief opposing the move, which would be an unprecedented departure from both tradition and law.
“It is no accident that amicus briefs are excluded in criminal cases,” Flynn’s lawyers wrote. “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.”
Judge Sullivan acknowledged the highly unusual step, but maintained that the “current posture of this case” meant that “individuals and organizations” may wish to weigh in on his final decision. While he said that such an invitation was not meant to be a “free for all,” it’s difficult to see how it will be anything but.
Sullivan’s decision came after 16 former Watergate prosecutors filed a brief asking the court to hear their opinion on the case.
“The parallels and the contrasts between the Watergate affair and the present situation now before this Court make manifest that Amici have a direct and substantial interest in the proper disposition of the pending Motion directed by the incumbent Attorney General to protect a close ally of the President,” the prosecutors.
These prosecutors may or may not have an “interest” in the disposition of the case, just as any other American might, but for them to say they have a “direct and substantial interest” is a statement of rank absurdity. Are you involved in the case? No? Then you have no “interest” in it, as that word is defined by the court.
“Seriously,” wrote lawyer and First Amendment expert Ron Coleman. “A federal judge is going to permit a group calling itself ‘the Watergate Prosecutors’ to file an ‘amicus’ brief arguing that the DOJ must prosecute someone it doesn’t believe should be prosecuted? For a felony? ‘THE WATERGATE PROSECUTORS’?!”
It almost defies belief. But, in this age of judicial activism against the president and his allies, nothing much surprises us anymore.