Amicus Brief

In Opposition to the Government’s Motion to Dismiss United States v. Flynn

June 28, 2021

May 21, 2020

Editorial credit: Kevin Dietsch / UPI /​Shutterstock

In an amicus brief filed today in federal court in Washington, D.C., Boston-based Lawyers Defending American Democracy (LDAD), an organization of attorneys across the country advocating to protect the rule of law, challenged the government’s “good faith” in moving to drop charges against Michael Flynn.

The government is taking the unusual step of trying to drop its case against Flynn for lying to the FBI, even though he has already pled guilty — twice — to that crime.

“The government’s motion to dismiss with prejudice a serious charge against a former senior federal official with friends in high places, for reasons that do not withstand scrutiny, directly implicates the rule of law and constitutes a substantial threat to public confidence in the administration of justice,” said LDAD in the filing. “The government’s lack of good faith is fatal to its motion.” 

The case turns on a criminal procedure rule that permits the court to let the government drop charges against a defendant — unless the government has some tainted motive or hasn’t shown a legitimate reason for dropping the case. 

LDAD’s filing quotes numerous tweets and other statements by President Trump that make clear that exonerating Flynn is an enduring priority of the Trump administration, and that the attempt to drop the charges against him is politically motivated. 

“The court should not allow the government to do Flynn an undeserved and transparently political favor by palming off under Rule 48(a) matters he himself could not plausibly invoke as the basis for a motion to dismiss or for a new trial,” argued LDAD in the brief.

The brief was prepared by Eugene R. Fidell, who teaches at Yale Law School and is of counsel at Feldesman Tucker Leifer Fidell LLP, Stanley J. Marcuss, former counsel to the U.S. Senate’s International Finance Subcommittee, former Senior Deputy Assistant Secretary in the U.S. Commerce Department and retired partner of Bryan Cave Leighton Paisner, and Evan Falchuk, former independent candidate for governor of Massachusetts and an entrepreneur and attorney.

Filed May 21, 2020



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