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Flynn Judge Appoints Amicus Curiae to ‘Present Arguments in Opposition’ to DOJ Motion to Dismiss

Former national security adviser Michael Flynn exits a vehicle as he arrives for his sentencing hearing at District Court in Washington, D.C., December 18, 2018. (REUTERS/Jonathan Ernst)

The judge presiding over the Michael Flynn case ordered the appointment of a third party “to present arguments in opposition” to the Department of Justice’s decision to drop the case against the former Trump national security adviser.

U.S. District Court Judge Emmet Sullivan, who said on Tuesday that he would allow outside briefs to be filed in the case, appointed John Gleeson, a retired New York federal district court judge, as an “amicus curiae,” or friend of the court, to counter the DOJ’s motion to dismiss. Gleeson will also “address whether the Court should issue an Order to Show Cause why Mr. Flynn should not be held in criminal contempt for perjury,” according to Sullivan’s order.

Last week, the DOJ said that “newly discovered and disclosed information” in the case against Flynn — who pled guilty in 2017 to lying to the FBI but withdrew his guilty plea earlier this year — changed the opinion of the prosecution on the 2017 White House interview which led to Flynn’s guilty plea.

“The Government is not persuaded that the January 24, 2017 interview was conducted with a legitimate investigative basis and therefore does not believe that Mr. Flynn’s statements were material even if untrue,” the decision stated. “Moreover, we do not believe that the Government can prove either the relevant false statements or their materiality beyond a reasonable doubt.”

Gleeson published an op-ed in the Washington Post on Monday arguing that “the Justice Department has made conflicting statements” in the case, and that Sullivan had the right to “compel the department to reveal the one thing it has thus far refused to show — the actual evidence underlying the prosecution.”

The FBI has yet to produce the original 302 interview document that was used in the White House interview of Flynn, and the final copy that was submitted 17 days after the interview was apparently edited by Lisa Page, then-counsel to former deputy director Andrew McCabe.

Flynn’s defense has argued in the past that the FBI manipulated the Flynn 302 to make Flynn appear guilty. In November, the DOJ admitted that they had misidentified the primary notetaker in the interview, claiming that agent Joe Pientka was “primarily responsible for taking notes and writing the FD-302,” after maintaining for months that Peter Strzok wrote the document.

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