But even with the top state-level prosecutors’ strong statement, the case is likely to continue,
at least for a few more weeks. In a legal brief obtained by CNN, the Republican attorneys general wrote they believed that Judge Emmet Sullivan’s questioning of the Justice Department was the court “inserting itself” into “prosecutorial discretion” and politics.
They urged Sullivan to dismiss the case, ending Flynn’s legal jeopardy. They also asked him to dismiss Flynn’s charge “without irrelevant or personal comment.”
Monday’s filing is the latest in a wave of strong reactions to the Justice Department’s decision to drop Flynn’s case, and to Sullivan’s move to ask a third-party lawyer to review the situation. The Justice Department’s about-face on Flynn earlier this month has been wielded by President Donald Trump as the unraveling of the Russia investigation. Thousands of former federal employees have criticized Attorney General William Barr for his decision on Flynn, citing thin legal reasoning that’s kinder to an associate of the President than to almost all other defendants.
Flynn’s charge of lying to the FBI about his contact with Russia before Trump took office — to which he pleaded guilty more than two years ago and still hasn’t been sentenced — isn’t absolved yet.
Sullivan last week appointed John Gleeson, a retired federal judge and private lawyer, to argue against the Justice Department’s motion to dismiss and to research his judicial authority in the case. The judge is also considering whether Flynn should be tried for possible perjury after the ex-general appeared to give conflicting statements under oath about his guilt.
The AGs’ brief on Monday was signed by top prosecutors from Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Louisiana, Mississippi, Missouri, Oklahoma, Ohio, South Carolina, Texas, Utah and West Virginia.
Ohio Attorney General Dave Yost is the lead writer on the filing.
The Republican Attorneys General Association announced its submission of the filing on Monday, but it had not appeared as a filing in federal court. So far, Sullivan has only let Gleeson wade into the Justice Department case against Flynn.
In the filing, the attorneys general say they and the Justice Department have all the power to charge crimes.
“Judges have no share of the executive power, and thus no say in the decision whether to prosecute,” the Republican state-level prosecutors wrote. “It has become trendy in recent years for courts to weigh in on the wisdom of this administration’s policy decisions. Too often, that commentary comes in grandiose terms more appropriate for an op-ed than a judicial opinion. … This trend is disastrous for the Judiciary, because it erodes public confidence in the courts’ ability to serve as neutral arbiters in politically sensitive cases.”
