the time for DOJ and Gen. Flynn to file Replies to the amicus brief arrived today. Those are the briefs I am reviewing today, with the DOJ brief up first. //

A lot will be made of Footnote 1 in the brief which addresses the production of a significant volume of material from the Flynn prosecutors following the transfer of the case to Judge Sullivan, and the entry by Judge Sullivan of his standing order on production by the government of Brady material to Gen. Flynn’s attorneys even though Gen. Flynn had pleaded guilty.

The Reply brief notes that the prosecutors produced approximately 25,000 pages of discovery in connection with Judge Sullivan’s order – documents that had not been provided to Gen. Flynn’s lawyers prior to his entering his guilty plea. In further notes that 21,000 pages of that material involved the FARA filing, and the remaining material dealt with Gen. Flynn’s January 24, 2017, interview, and the various interviews done with him as part of his cooperation with the SCO’s investigation.

Then it gets interesting when it refers to the 25 pages of material disclosed to Gen. Flynn’s attorneys in May 2020 as the result of the independent review conducted by U.S. Attorney Jeffrey Jensen. It states that these documents are relevant to the “discretionary decision to dismiss this case.” //

The final point I’ll make on the DOJ brief is that it lays waste to the claim by Flynn opponents that because Gen. Flynn has pleaded guilty, there is some heightened judicial interest in terms of the separation of powers concerns, and the Executive interest in controlling the charging decision is diminished. As Dep. Sol. General Wall stated in his argument before the Circuit Court, and as is repeated here, there is no basis in the case law for such a distinction. The constitutional concerns regarding separation of powers, under the case law, are the same in either circumstance.

Most significantly – from a nerdish lawyer point of view – is the point that dismissing an action is not a “judicial” act in the same way that entry of judgment or sentencing is a judicial act. Allowing the parties to jointly resolve and dismiss the dispute does not in any way give the resolution the imprimatur of judicial agreement with the outcome. It is nothing more than an acknowledgment by the Court that there is no further case or controversy for the Court to resolve.