The Curious Matter of Judge Sullivan, His Lawyer, and the Appeals Court

Maybe you thought the General Michael Flynn case couldn’t get any stranger.  Now this: Judge Emmet Sullivan, upon being ordered by the DC Court of Appeals to respond to the defense team’s petition for writ of mandabus, has hired a high-powered lawyer of his own.

When was that last time you heard of a judge getting a lawyer in a matter over which he was presiding?  I’ve never heard of such a thing.

Let us take a look at what is in the bushes here.

Recap of May 2020 Events

First, a recap of the most recent events in the prosecution of Michael Flynn by the Mueller Special Counsel’s Office. Only the very most recent, because this case has truly been a freak show for three years.

• in the week prior to May 7: document dumps produced evidence of gross FBI misconduct in targeting Flynn in a perjury trap with no investigative purpose, and of Flynn’s original counsel, Covington & Burling, making a secret side deal that the government would not prosecute Flynn’s son in exchange for Flynn’s guilty plea.
• May 7: the prosecution submitted a motion to dismiss the case with prejudice, meaning they could never bring charges again. The motion stated that the government had no original predicate to interview Flynn, and that any false statement  he might have made was not material to any investigation, and therefore no crime.
• May 12: rather than dismissing the case, Judge Sullivan declared he would be accepting amicus briefs from third parties as late as June 10, and outlined a schedule that would  include hearings in July.
• May 13: Sullivan appointed retired judge John Gleeson to be amicus curiae  “to present arguments in opposition to the government’s motion to dismiss”, as well as explore whether Flynn should be charged with perjury.  Gleeson had written an Op-Ed May 11 in the Washington Post critical of the government’s decision to drop the case.
• May 19: Flynn’s team filed a petition for a Writ of Mandamus with the DC Court of Appeals, requesting the higher Court to direct Sullivan to dismiss the case.
• May 22: the DC Court instructed Sullivan to respond to the petition for writ of mandamus within 10 days.
• May 24. news came indirectly that Judge Sullivan had hired  his own high-powered lawyer, Beth Wilkinson.

And that was the very brief version.

What does Judge Sullivan need a high-powered lawyer for?  I believe it is simply for counsel on how to craft the response, which is highly interesting, since one would assume that an experienced federal judge would know.  I suspect he knows he has painted himself into quite a corner, and is looking for anything with a parachute. He has not merely mis-stepped, he has moved into the area of misconduct. Let us now deconstruct. I’d like to work from end to beginning on this one.

A Writ of Mandamus

(h/t The Federalist article relied on heavily here)

Start with the May 22 initial response from the Appeals Court. A writ of mandamus is an order from a higher court to a lower court to conduct itself according to the law.  It is considered a fairly extraordinary measure, and is rarely granted (most such petitions are just Hail Marys). Three conditions must be satisfied: (1) the petitioner has no other means of having this putative wrong made right, (2) petitioner shows a clear and indisputable right to the writ, and (3) (the wild card) the higher court in its discretion agrees the writ is appropriate.

Most petitions are rejected out of hand, with no detailed response. Otherwise, the appellate court may order or invite the trial judge to respond to matters addressed in the petition. Alternatively, the appellate court may assign an amicus curiae to do so.

In this case, the DC Court of Appeals ordered (not invited) Judge Sullivan (not a proxy in the form of an amicus curiae) to respond in 10 days.  They have ordered him to personally and publicly defend his decision.  Their order specifically cited a recent case in that court, United States v. Fokker Services, a decision which held that the Executive branch has primacy over charging decisions (in that case the government and defendant had made a deferred prosecution agreement, and the judge deemed the decision too lenient and denied the motion to defer prosecution).  The DC Court in citing this in their order for Sullivan’s response does not bode well for him.

This Petition for Writ of Mandamus

High-powered attorney Sidney Powell asked for three things from the Court of Appeals (honestly, it was enjoyable reading):

• grant the Justice Department’s Motion to Dismiss;
• vacate its order appointing amicus curiae; and
• reassign the case to another district judge as to any further proceedings.

Her rationale (in very brief) was that: the Constitution and many precedents place the power to prosecute solely on the Executive Branch; appointing an amicus curiae to argue against the prosecution’s motion to dismiss was in effect acting as prosecution, again usurping Executive Branch authority; that that amicus briefs have no place in criminal trial courts; and that Sullivan had committed numerous acts (which were enumerated) casting doubt on his objectivity in the case, not the least being selecting that particular retired judge — Gleeson, who was clearly not objective on the maatter —  as amicus curiae.

The Government’s Motion to Dismiss

In the case of Flynn, the government’s motion to dismiss could have been a 3-page document. It was a 108-page monstrosity that went to exceptional detail about government misconduct. It actually had screen shots of Bill Priestap’s hand-written note questioning whether the aim of a Flynn interview was to get an admission or  get him to lie so they could prosecute him or get him fired; it showed texts between Peter Strzok and Lisa Page as they continuously re-edited Form FB-302 interview notes in order to incriminate Flynn; it discussed Crossfire Hurricane, the January 4 FBI “closing document” indicating there was no derogatory information on Flynn and recommending any investigation be closed;

Sullivan read all of this, or should have. Yet instead of granting the prosection’s motion to dismiss, he has instead chosen to further drag this out, further denying decent treatment of the accused.

Sullivan’s Situation

Sullivan’s acts beginning on May 7 were far outside of any precedent.  Not immediately granting the prosecution’s motion to dismiss is a violation of the Separation of Powers doctrine, with recent precedents including not only Fokker, but a 9-0 Supreme Court decision handed down May 7, the exact date of this case’s motion to dismiss. Authored by Justice Ginsberg, it slapped down the 9th Circuit Court of Appeals for violation of a basic legal tenet called the “party presentation principle”.  In short, the court has to adjudicate the case in front of it, not the case it wishes it had.

There is another principle not so far mentioned in this column (but discussed at length by Powell in the petition). Due process. The entire judicial system in America has as a bedrock principle that the defendant has rights against being overpowered by the government (prosecution), and the judiciary is the primary protector of those rights. Because of due process, there are any number of rules (Miranda rights, chain of evidence, trial jury of peers, effective defense, discovery, Brady rules, speedy trial, freedom from double jeopardy,and many others). Were the judiciary to wrongly impose on the prosecution, that is bad. Were they to needlessly persecute the accused, that is a travesty which must not be borne.

Sullivan has been ordered to defend his actions in writing.  There’s not much of a  way to pretty this up.  He stepped way out of line, not only in sitting on the motion to dismiss, but in taking the role of a prosecutor. In addition, said some very intemperate things on the record: straight up accused Flynn of treason — yes, a trial judge said that to the defendant on a “lying to FBI on whether he discussed sanctions with Russian US Ambassador Kislyak” charge; and said “can’t hide my disgust, my disdain”;

No wonder he brought in Beth Wilkinson.  He’s OJ, except the gloves do indeed fit. He had better come up with something amazing.

He Could Punt

I have seen this mentioned only by Andrew McCarthy (although that’s pretty good chops right there ) . Judge Sullivan could, between now and June 1, grant the government’s motion to dismiss.  It’s not particularly a glamourouse move, does not save face, but it would probably help him escape from possible misconduct proceedings.