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U.S. District Judge Delays DOJ Effort To Drop Michael Flynn Case


What more does a judge want to know about the case of Michael Flynn? President Trump's attorney general, William Barr, wants to drop charges against the former national security adviser. The attorney general wants to do that even though Flynn pleaded guilty to lying to the FBI about his dealings with Russia. Judge Emmet Sullivan is deciding whether to allow this and has invited friend-of-the-court briefs. Kim Wehle is a former U.S. attorney and a friend of this program and is on Skype. Good morning.

KIM WEHLE: Good morning, Steve.

INSKEEP: Why invite outside opinions?

WEHLE: Well, judges normally make decisions when they hear both sides of an issue. And here, we have the Flynn team and the Department of Justice both taking the same point of view, that is that the case could be - should be dismissed. And so I think he wants to hear from others that would make the argument against dismissal, arguably in the public interest, because there are, I think, some concerns here with potentially politicizing this entire Mueller investigation, which led, of course, to Mr. Flynn's guilty pleas.

INSKEEP: Well, presumably, he's going to be able to find someone with an opinion on the other side of this case since there are almost 2,000 former Department of Justice officials who signed a letter calling for William Barr to resign because he called to drop the case against Michael Flynn.

WEHLE: Yeah. It's important to keep in mind, the guilty plea functions like a conviction. So in a different type of case, you can imagine an entire jury trial and a conviction by a jury and then the government coming in and saying, you know what? It turns out we really shouldn't have brought this anyway because the investigation itself was bogus or was improper. And at that point - like, now, it's really in the judge's court. It's no longer under the rules, under Rule 48 of the Federal Rules of Criminal Procedure. It's no longer in the Department of Justice's court.

So I would assume some of those people would weigh in and say, listen; this is the other side of the coin. And then the question will be, will Judge Sullivan actually hold hearings? Will he call witnesses, both on the question of whether this was an appropriate withdrawal of the case and also on the Justice Department's now position that the case, itself, was improperly brought because the investigation that ultimately led to the Mueller report was improper? And remember, too...

INSKEEP: Does...

WEHLE: Oh, go ahead.

INSKEEP: No. You go, ahead, Kim.

WEHLE: I was going to say, remember, too, this was produced through the Mueller investigation, which, in theory, was designed to be independent of the Justice Department. So there's that wrinkle, too, because Mr. Barr took the ball, where, in theory, it really should have stayed with the special counsel because that entity was appointed specifically to make this a neutral, independent process.

INSKEEP: Does the judge have the power, Kim Wehle, to say, actually, William Barr, this is obviously political? You're obviously just doing what the president wants. You're obviously just focusing - functioning as his lawyer. And I'm going to make you continue this case even though you want to drop it. Does he have the power to do that?

WEHLE: He has the power to just go forward and do a sentencing at this point. Imagine, again, that the jury is done. There has been a conviction. There's a conviction by Mr. Flynn of himself, essentially, with a guilty plea. And so sure, the judge can say, I'm making a determination. I'm going to continue to accept the guilty plea. And I'm going to go forward with the sentencing. And I reject this notion that somehow - that this was improper, because the Department of Justice said, listen; the lies were not material to anything that's important in the public interest. And I think that Judge Sullivan is going to probe that assumption.

INSKEEP: And we should remember, these were lies about phone calls to the Russian ambassador and the heated moments after the 2016 election, right?

WEHLE: Yeah, about potentially lifting Russian sanctions once Mr. Obama was no longer in office.

INSKEEP: Kim Wehle is a former United States attorney and legal analyst, joins us on Skype. She's an associate professor at the University of Baltimore. Thanks so much.

WEHLE: Thank you, Steve. Transcript provided by NPR, Copyright NPR.