A recent column praised Judge Emmett Sullivan’s proposed handling of a Department of Justice request to dismiss the charges against former National Security Adviser Michael Flynn for allegedly lying to FBI investigators. Some commentators have suggested, however, that Sullivan erred in ordering an “independent review” of the DOJ motion. [Judges are umpires, not ringmasters, Alan Dershowitz, Wall Street Journal, 5/13/20.]
In any case, the DOJ motion was amply justified. A growing body of evidence has emerged that the Flynn investigation was begun without a proper factual basis. Flynn was told he wasn't a target and wouldn't need a lawyer. The original form 302 (recap by agents who conducted the interview) seems to be missing. The form 302 was revised by non-participants, violating standard FBI procedures. Flynn was pressured into pleading guilty by threats to prosecute his son. DOJ prosecutors stonewalled defense requests for exculpatory evidence, resulting in egregious Brady violations.
An emergency appeal to the DC Circuit appellate court ensued, and it appears that Judge Sullivan’s plan will be swiftly overruled. That’s good, in my opinion, because his reaction to the DOJ motion betokened bias versus independence.