In May, the Department of Justice announced that they were filing a motion to dismiss the charges against former National Security Advisor Michael Flynn However, Judge Emmet G. Sullivan declined to dismiss the case without further testimony from interested parties. As a result, Flynn’s attorneys have filed a writ of mandamus in the D.C. Circuit asking it to order Judge Sullivan to dismiss the case. In a rare move, Solicitor General Noel Francisco has personally signed on to the DOJ’s brief in support of Flynn’s writ.
The brief argues that Judge Sullivan exercised authority that the Constitution vests in the Executive Branch:
The Constitution vests in the Executive Branch the power to decide when—and when not—to prosecute potential crimes. Exercising that Article II power here, the Executive filed a motion to dismiss the indictment, and petitioner consented. Despite that exercise of prosecutorial discretion, and the lack of any remaining Article III controversy between the parties, the district court failed to grant the motion and bring the case to a close. It instead appointed an amicus curiae to argue against dismissal and to consider additional criminal charges. . . .
Nor, under the circumstances of this case, may the district court assume the role of prosecutor and initiate criminal charges of its own. . . . Instead of inviting further proceedings the court should have granted the government’s motion to dismiss.
In conjunction with the Conservative Legal Defense and Education Fund, former U.S. Attorney General Ed Meese filed a brief in support of Flynn on Monday arguing that the Attorney General has the responsibility to ensure that criminal charges are only brought for actual violations of federal law: “General Flynn’s case illustrates how the discretionary acts of the Executive Branch can protect the constitutional rights of criminal defendants, by means of prosecutorial discretion.” Furthermore, the brief argues that there is precedent for Circuit Courts to reverse denials of motions to dismiss after the entering of a guilty plea.
GOP lawmakers from across the country have also expressed their support for Flynn, including 16 state attorneys general and 11 GOP House members. Senators Tom Cotton, Mike Braun, Kevin Cramer, Ted Cruz, Chuck Grassley, Rick Scott, and Mitch McConnell have also filed a brief in support of Flynn.
Oral arguments will take place on June 12.