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Ohio AG Dave Yost: Judge should have no say in whether to prosecute Michael Flynn for lying to FBI

The Plain Dealer  Cleveland logo The Plain Dealer Cleveland 5/19/2020 By Eric Heisig, cleveland.com
Dave Yost in a suit standing in front of a curtain: Attorney General Dave Yost speaks at a news conference Thursday to release the recommendations of a task force studying Ohio's facial-recognition program. © Jeremy Pelzer, cleveland.com/cleveland.com/TNS Attorney General Dave Yost speaks at a news conference Thursday to release the recommendations of a task force studying Ohio's facial-recognition program.

CLEVELAND, Ohio — Ohio Attorney General Dave Yost argued in a court filing that a federal judge in Washington, D.C. has no choice but to dismiss the charge against Michael Flynn, former national security advisor to President Donald Trump who pleaded guilty to lying to the FBI, after the Justice Department asked him to do so.

Yost’s brief, written by Solicitor General Benjamin Flowers, says the Justice Department, part of the Executive Branch, cannot be forced to prosecute a case because of the separation of powers spelled out in the Constitution.

It also says that U.S. District Judge Emmet Sullivan should refrain from commenting on the decision not to prosecute Flynn, arguing essentially that it’s not a judge’s place to speak up if they see problems with the decision of the president’s administration.

“Too often, that commentary comes in grandiose terms more appropriate for an op-ed than a judicial opinion,” the brief states.

Yost signed the brief. He filed it on behalf of himself and 14 other Republican state attorneys general.

Flynn pleaded guilty to a single count of making false statements and agreed to cooperate in a probe surrounding President Donald Trump’s campaign, Russian interference and whether the president obstructed justice.

Sullivan was set to sentence Flynn in December 2018 but postponed it as Flynn continued to cooperate. The judge made his feelings about Flynn’s actions known at the hearing, telling Flynn that “arguably, you sold your country out.”

Flynn’s position turned toward defiance as of late and he has tried to chip away at the government’s case in recent months with the help of new counsel.

The Justice Department on May 7 moved to dismiss the charge against Flynn because it now determined, more than two years after Flynn was charged, that the FBI’s interview of the former national security advisor was “untethered to, and unjustified by” agents’ counterintelligence investigation into him.

The motion to dismiss Flynn’s charges was only signed by Timothy Shea, the interim U.S. attorney in Washington, D.C. who has come under fire for showing leniency to Trump allies at the center of a probe by then-Special Counsel Robert Mueller. Trump on Monday nominated Justin Herdman, the U.S. attorney in Cleveland, to replace Shea, and Attorney General William Barr said Shea will now lead the U.S. Drug Enforcement Administration.

While the government said the decision not to prosecute was made after a review that included newly discovered information, critics have said its decision smacks of political favoritism.

Instead of dismissing the charge upon the government’s request, as is customary in criminal cases, Sullivan on Wednesday appointed a former federal judge to argue in a “friend-of-the-court” brief against dismissing the charge against Flynn.

Yost’s brief, however says that “there was no reason to issue these orders because this Court has no say in the federal government’s decision not to prosecute.

“Simply put, the decision not to pursue a criminal conviction is vested in the executive branch alone – and neither the legislature nor the judiciary has any role in the executive’s making of that decision,” the brief states.

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