The decision of a United States judge to stall America’s motion to drop its case against General Michael Flynn appears calculated to delay the matter until after November. That’s how it looks, at least to us, in the wake of the judge’s decision to invite outside parties to file friend-of-the court briefs on what to do next. Could it be that the judge hopes the Democrats will win the election and, come January, drop the motion to drop the case?
In offering that line of speculation — and that’s all it is — we do not intend to question the integrity of the judge, Emmet Sullivan. We see as long-overdue and courageous Attorney General Barr’s decision to move to dismiss the case against General Flynn. The judge, though, has had a long and distinguished career on the bench. He was elevated to his several judgeships by Presidents Reagan, George Bush ’41, and Clinton.
Nor was it was ever, in our view, a foregone conclusion that the judge would grant America’s motion to end the case against the general, even if the betting around the courthouse is that the judge, in the long run, has few options but to grant the motion. After all, there is no longer an actual case or controversy, which is the only thing the Constitution grants the courts the power to decide.
Note, though, our caveat “in the long run.” What Judge Sullivan did today was issue a written order saying the court “anticipates that individuals and organizations will seek leave of the Court to file amicus curiae briefs” in the case. He must have been reading the op-ed pages. His order is practically an engraved invitation to the entire industry devoted to destroying the Trump presidency to pile on against the general.
Judge Sullivan quoted a colleague as saying that a criminal proceeding is not a “free for all.” Nonetheless, the judge signaled that he will take his time in dealing with the amicus briefs he has invited. The Court, he wrote, at the “appropriate time” will “enter a Scheduling Order governing the submission of any amicus curiae briefs.” That could take months, particularly with legal due process at a crawl because of the pandemic.
Meantime, there is the cataract of disclosures about the way the Flynn case and related matters were handled by the FBI and President Obama and his camarilla. Soon, though, the election will be but weeks away. A Democratic victory could throw the whole thing into a cocked hat all over again. It’s a moment to spare a thought for the general. He devoted his whole career to his country and deserves better than this.