When the Justice Department filed a motion to dismiss the charges against Lt. Gen. Michael Flynn, it didn’t expect much pushback. Instead, the judge in the case declined the dismissal, opened up a separate investigation into Flynn and hired a high-profile defense attorney for himself.
The district court judge, Emmett Sullivan, has hired attorney Beth Wilkinson to represent him as the Flynn case moves forward, a highly unusual decision for a judge. Wilkinson is known for representing people in high-profile cases; She is the same attorney who represented Supreme Court Justice Brett Kavanaugh during his nomination process.
Sullivan hired Wilkinson after the D.C. Circuit Court ordered him to explain his decision to not immediately dismiss the Flynn case when prosecutors asked that it be dropped. (RELATED: DOJ Official Abruptly Withdraws From Flynn Case)
Constitutional Law Attorney Jenna Ellis, a senior legal advisor to the Trump 2020 campaign, writes that there are several possible reasons Sullivan may have hired an attorney.
First, Sullivan may be concerned that any explanation for his actions could be used against him as proceedings move forward, Ellis wrote for Fox News. Wilkinson is a veteran defense attorney and would be a great help in a prolonged legal battle with the DOJ.
Already, Sullivan has made decisions in the Flynn case that have raised eyebrows in the legal community, such as denying 24 amicus briefs supporting Flynn before his guilty plea, and then turning around to himself appoint an amicus brief against Flynn after prosecutors asked that the charges be dropped, according to Ellis.
Flynn’s attorneys have jumped on Sullivan’s actions, arguing he is flouting his role as a judge and attempting to tell prosecutors how to do their jobs.
“This is an umpire who has decided to steal public attention from the players and focus it on himself,” Flynn’s team wrote in an emergency petition in mid-May. “He wants to pitch, bat, run bases, and play shortstop. In truth, he is way out in left field.”
Other legal experts have a more benign reading of Wilkinson’s hiring, however. Experts representing Harvard, Berkeley, and the anti-Trump Lincoln Project submitted a brief urging Sullivan not to grant the DOJ’s dismissal. In their eyes, the case had already been decided once Flynn pleaded guilty, and the DOJ is not attempting to bully Sullivan into reversing a case for partisan reasons.
“This case is ultimately about judicial independence and the integrity of the Judicial Branch and therefore about the rule of law in our constitutional democracy,” the brief stated. “The government’s motion to dismiss the case against Michael Flynn, after he twice pled guilty…asks this Court to place its [approval] on the Executive Branch’s virtually unprecedented decision to dismiss a prosecution after the case has been won.”
The DOJ argues there is grounds for dismissal because the FBI never had enough basis to bring Flynn in for the interview which led to his being charged with lying to the FBI. (RELATED: US Attorney Is Investigating 2017 Leak To WaPo About Michael Flynn)
“The Government has concluded that the interview of Mr. Flynn was untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn,” U.S. attorney in Washington, D.C. Timothy Shea wrote in a court filing.
Flynn’s case is currently at a standstill, but FBI Director Christopher Wray has ordered an investigation into his bureau’s handling of the Flynn probe which may speed the case along.
Sullivan has scheduled arguments for the motion for dismissal for July 16.