Last week, the Department of Justice took the unprecedented step of dropping all charges against former national security adviser Michael Flynn, claiming it could not prove that he was guilty of making false statements to the FBI. “We do not believe that the Government can prove either the relevant false statements or their materiality beyond a reasonable doubt,” the filing claimed. The DOJ, which has seen its independence stripped under Attorney General William Barr, did not stress in the filing that Flynn pleaded to lying to the FBI in December 2017.
But on Tuesday night, the judge overseeing the criminal case delayed the dismissal of charges: In his order, Judge Emmet G. Sullivan of the United States District Court for the District of Columbia established a schedule for outside parties to comment on the DOJ motion to drop the case. Though Sullivan did not address if he plans to hold a hearing on the decision to punt on the case, his decision to allow amicus curiae (“friend of the court”) briefs suggests Flynn may not be out of the weeds yet. “The judge could be concerned this is cronyism,” Nancy Gertner, a former federal judge and current Harvard Law School professor, told the New York Times. “I would predict that he holds a hearing and has the prosecutors justify the decision they made.”
Regardless of Flynn’s legal status, in the coming weeks his name is likely to be mentioned more frequently by the president, as he pushes his latest distraction: claiming that the previous administration acted illegally when the DOJ began probing the incoming national security adviser during the transition. Trump, however, will have to be able to define the debunked scandal he is calling Obamagate to be able to mention Flynn’s role in it — a task he was not up to at the White House coronavirus press conference on Monday.