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Thanks to the DOJ's help, is Flynn in the clear? Maybe not

Bill Barr's Justice Department may want the case against Michael Flynn to go away, but the federal judge overseeing the case may disagree.
Image: Former National Security Advisor Michael Flynn Awaits Sentencing After Pleading Guilty To Lying To FBI
Former White House National Security Advisor Michael Flynn leaves a sentencing hearing in U.S. District Court on Dec. 18, 2018.Chip Somodevilla / Getty Images file

On the surface, the case against former foreign agent Michael Flynn appears to have run its course. Attorney General Bill Barr's Justice Department announced last week that it's dropping the charges, concluding that it cannot prove Flynn is guilty of the crimes to which he's already pleaded guilty.

But that doesn't necessarily mean the case is over and the defendant is in the clear.

On Monday, the Washington Post published an op-ed from three former federal prosecutors -- John Gleeson, David O'Neil, and Marshall Miller -- who argued that the federal judge overseeing the case, Emmet G. Sullivan, has "the authority, the tools and the obligation to assess the credibility of the department's stated reasons for abruptly reversing course."

The piece added that the Justice Department's motion to dismiss the Flynn case is "actually just a request" that a court needs to approve.

One day after the op-ed was published, NBC News reported that the judge in the Flynn case took "the unusual step" of "inviting briefs from third parties."

Judge Emmet G. Sullivan said in a filing Tuesday he'll allow individuals outside of the Justice Department and Flynn's attorneys to submit filings in the case that might be able to provide the court with additional information or perspectives that might help him make a decision on whether to dismiss the charges against Flynn or let him withdraw his guilty plea.... Judge Sullivan wrote that, "given the current posture of this case," he anticipates "individuals and organizations" to file legal briefings and letters, which are almost always made public.

To be sure, this doesn't mean we can say with certainty that the judge will reject the Justice Department's motion, though it does open the door to that possibility, suggesting the process is suddenly slower than it appeared last week.

Harvard Law School's Nancy Gertner, a former federal judge, told the New York Times. "I would predict that he holds a hearing and has the prosecutors justify the decision they made. The judge could be concerned this is cronyism."

That would be a reasonable concern given the unprecedented circumstances.

Let's also not lose sight of the judge's previous comments regarding the case. In December 2018, for example, during a sentencing hearing, Sullivan made little effort to hide "disgust" with Flynn over his felonies, briefly broaching the subject of whether the former White House national security advisor had committed treason.

The judge -- a Republican appointee with a conservative reputation -- at one point told Flynn, "Arguably, you sold your country out" by working as an unregistered foreign agent.

This is the same judge who's now open to receiving briefs about the Flynn case before deciding whether to accept the prosecutorial strategy of the Trump/Barr Justice Department.