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Opinion: The unprecedented saga of Michael Flynn continues

Zack Smith

The word “unprecedented” gets thrown around a lot these days. But in many ways Michael Flynn’s case is just that.

Set aside the background of the case — that the FBI targeted the incoming national security adviser in an interview that defied normal protocols and then attempted to justify it on the basis of investigating a potential violation of a constitutionally dubious 200-plus-year-old law under which no one has ever been convicted.

Former Trump national security adviser Michael Flynn

Take, for example, only the events of the past week: After an independent investigation by a separate U.S. attorney’s office uncovered troubling new information related to the prosecution, the Department of Justice reversed course and dismissed the charges against Flynn because “continued prosecution of this case would not serve the interests of justice.”

Because of the stage of the litigation, DOJ needed the judge’s approval to dismiss the case — a typically pro forma requirement primarily designed to protect defendants against harassment by unscrupulous prosecutors.

But the judge in the case is taking a different tack. Rather than expeditiously granting the motion, he has taken the extremely unusual step of appointing a retired former federal judge — who only two days prior to his appointment had suggested in the op-ed pages of the Washington Post that Flynn’s judge take just such a step — to argue against DOJ’s motion to dismiss. This judge is expected to explore whether Flynn should be held in criminal contempt of court for potentially committing perjury, presumably by pleading guilty in open court to a crime he and DOJ now say he did not commit.

Let that sink in. The implications are staggering: Anytime a defendant seeks to withdraw a previously entered guilty plea, they could now face a new criminal charge for committing perjury.

Moreover, the judge in Flynn’s case invited others who have no substantive interest in the outcome of the proceeding to file amicus curiae (“friend of the court”) briefs. This is virtually unheard of at trial-level criminal proceedings. It also seems to fly in the face of a Supreme Court opinion released only last week warning judges against just such a practice. Not to mention that, according to Flynn’s lawyer, this same judge had denied 24 previous attempts by others to file amicus briefs such as these.

From the interviewing of an incoming national security advisor for a purported violation of the Logan Act to a federal district court judge appointing an amicus to argue against a motion to dismiss and to explore potential criminal contempt of court charges for committing perjury when the defendant and the government agree the charges should be dismissed — this entire chain of events is unprecedented.

One aspect of this case, though, does have a precedent, in front of the very same judge who is now taking such unusual steps in Flynn’s case. Over a decade ago, Flynn’s judge presided over the high-profile corruption trial — and subsequent fall out — of then-Sen. Ted Stevens, a Republican from Alaska.

There, as now, allegations of prosecutorial misconduct flew. There, as now, DOJ appointed a new team of prosecutors to review the work of the previously assigned prosecutors. There, as now, this new team discovered previously undisclosed information that should likely have been turned over. There, as now, in light of this new information, DOJ moved to dismiss the indictment “in the interest of justice.” There, as now, the judge appointed an independent lawyer to explore whether criminal contempt charges should be brought.

There, unlike now, the focus of the judge’s ire and the potential contempt charges were the original prosecutors who failed to turn over the required information. There, unlike now, the court-appointed lawyer did not argue against DOJ’s motion. There, unlike now, the court-appointed lawyer did not explore perjury charges against the defendant. There, unlike now, the judge expeditiously granted DOJ’s motion — approximately seven days later.

So, why the difference now? Hard to say. But Flynn’s judge would be well-served to step away from taking unprecedented actions and adhere to his own precedent from the Stevens case by following DOJ’s recommendation and dismissing the charges “in the interest of justice.”

Zack Smith is a legal fellow in the Meese Center for Legal and Judicial Studies at The Heritage Foundation.