The continuing saga of Judge Emmet Sullivan v. Michael Flynn


I’m going to have to start covering this case like an old radio serial show. “In this battle of good versus evil, in our last episode our hero Judge Emmet Sullivan said ‘not in my court you don’t’:

U.S. District Judge Emmet G. Sullivan is most displeased, and he is having none of it in his court. The Washington Post reports, Court asks retired judge to oppose Justice Dept. effort to drop Michael Flynn case, examine whether ex-Trump adviser committed perjury:

Michael Flynn’s sentencing judge Wednesday asked a former federal judge to oppose the Justice Department’s request to dismiss the former Trump national security adviser’s guilty plea and examine whether Flynn may have committed perjury (again).

U.S. District Judge Emmet G. Sullivan appoint[ed] retired New York federal judge John Gleeson … best known for putting the late mob boss John Gotti behind bars. As a federal judge from 1994 to 2016 appointed by Bill Clinton, Gleeson was not shy about criticizing the Justice Department, and one lawyer who practiced before him called him “a purist.”

Sullivan set oral arguments for July 16.

The villain of our story and traitor to his country, Michael Flynn, and his attorneys on Tuesday petitioned the D.C. Circuit for a writ of mandamus, asking the appellate court to direct Judge Sullivan to accept the DOJ’s motion to dismiss without further delay.

On Thursday, a three judge panel (Circuit Judges Karen LeCraft Henderson, Neomi Rao and Robert L. Wilkins (appointed by Presidents George H.W. Bush, Donald Trump and Barack Obama, respectively) of the Appeals court ordered Judge Sullivan to defend actions, as legal scholars weigh in:

The appeals court on Thursday ordered (per curiam order) the judge in Michael Flynn’s case to defend his actions after Flynn’s attorneys asked that his conviction be dismissed immediately, as requested by the Justice Department.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit took the unusual step of ordering U.S. District Judge Emmet G. Sullivan to answer within 10 days accusations from Flynn, President Trump’s former national security adviser. The court also invited the Justice Department to comment.

Our hero, Judge Sullivan, responded “Oh yeah? I’ll see your order and raise,hiring a high-powered D.C. attorney to defend his actions in Flynn case to ride to the rescue:

In a rare step that adds to this criminal case’s already unusual path, U.S. District Judge Emmet G. Sullivan has retained Beth Wilkinson to represent him in defending his decision to a federal appeals court in Washington, according to a person familiar with the hire who spoke on the condition of anonymity because of the sensitivity of the matter.

Wilkinson, known for her top-notch legal skills and get-results style, is expected to file a notice with the court in the coming week about representing the judge.

Wilkinson, a go-to advocate for prominent officials snared in major Washington investigations and high-stakes legal battles, now joins the fray.

A federal judge doesn’t typically hire private counsel to respond to an appeals court, and yet so much about Flynn’s case has been a departure from the norm. A defendant doesn’t normally plead guilty under oath and then try to withdraw that admission, as Flynn did. The Justice Department almost never drops a case once it has essentially won a conviction, a signed guilty plea, as Attorney General William P. Barr ordered earlier this month.

The order comes as legal scholars from across the political spectrum debated the case’s implications for judicial independence and the Constitution’s separation-of-powers design.

A posse of “white hats” lawmen rode to defend the judge:

“This case does not involve a decision by the Executive Branch simply to ‘drop’ a prosecution,” but a “virtually unprecedented decision” to dismiss a case after it has been won, wrote a group of about 20 legal experts, led by Harvard law professor Laurence H. Tribe, in a brief the group requested to file Friday.

* * *

Tribe said his group will request to file a friend-of-the-court brief, saying the circuit panel’s order “makes it all the more urgent” and that the panel should deny Flynn’s request because granting it would be “a remarkable abuse of judicial authority.”

Requiring Sullivan to exonerate Flynn in the “public interest” as the government and Flynn request would make the court a “subordinate” of the Department of Justice and force it to be “complicit” in an “inexplicable about-face,” they wrote. They argued the federal judiciary would be treated as “an agency located on the executive branch organization chart headed by the President.”

Courts “do not simply do the bidding of the executive branch,” but instead have independent judicial authority, especially after a case has been fully prosecuted, a guilty plea entered and a sentence recommended, the brief argued. It said, “The separation of powers protects this Court’s authority to complete the resolution of this case, free from the interference of the Executive Branch.”

Law & Crime adds, George Conway, Laurence Tribe and Others Headline Brief Arguing Against ‘Virtually Unprecedented’ Dismissal of Michael Flynn Case:

A coalition of 20 elite legal scholars on Friday submitted a legal brief imploring the federal judge overseeing the prosecution of retired lieutenant general Michael Flynn to deny the Justice Department’s motion to dismiss the criminal case against the former National Security Advisor. According to the brief, U.S. District Judge Emmet Sullivan is under no obligation to mechanically grant the DOJ’s controversial motion. There is no valid reason the court should be prevented from imposing a lawful sentence against a defendant who has twice pleaded guilty to committing a federal crime, the lawyers argued.

Led by Harvard Law School Professor Laurence Tribe, the group also included Berkeley Law legal scholar Erwin Chemerinsky, Cornell Law’s Michael Dorf, Chicago University’s David Strauss, and Trump nemesis/attorney and Lincoln Project co-founder George Conway.

In an 11-page amici curiae brief submitted to the U.S. District Court for the District of Columbia, the group contended that the DOJ’s request to dismiss the Flynn case was “virtually unprecedented,” and could have profound and lasting effects on federal judiciary’s independence from the executive branch.

“This case is ultimately about judicial independence and the integrity of the Judicial Branch and therefore about the rule of law in our constitutional democracy,” the brief stated. “The government’s motion to dismiss the case against Michael Flynn, after he twice pled guilty to violating 18 U.S.C. § 1001, asks this Court to place its imprimatur on the Executive Branch’s virtually unprecedented decision to dismiss a prosecution after the case has been won.”

Heavily emphasizing the fact that Flynn had twice stood before the court and admitted his guilt, the scholars rejected the notion that imposing a sentence without the support of the executive branch would conflict with the separation of powers doctrine.

“Some have suggested that the Executive Branch’s prosecutorial discretion and the separation of powers compel this Court to grant the government’s motion. Such suggestions are profoundly misguided,” the experts argued. “If anything, the separation of powers militates in the opposite direction and protects this Court’s authority to complete the resolution of this case, free from the interference of the Executive Branch. By denying the government’s motion, this Court would not be invading the prosecutorial discretion of the Executive Branch but rather ensuring the independence and integrity of the judiciary, which are fundamental values safeguarded by the separation of powers.”

The filing argues that under Rule 48(a) of the Federal Rules of Criminal Procedure, federal prosecutors do not have unfettered discretion to terminate prosecutions at any time, and the court is required to make an independent determination that dismissing the case would be in the “public interest.”

“The determination required by Rule 48(a) gives this Court an institutional stake in the dismissal sought by the government, because granting the motion would entail an official certification by this Court as to where the public interest lies in this proceeding,” the brief stated. “Given the extraordinary factual and legal circumstances presented by the Department’s abandonment of the Flynn prosecution, such a certification is fraught with political risks to the Judicial Branch. In assessing the perils of the step the government asks the judiciary to take, this Court should heed the instruction of Chief Justice [John] Roberts, who opined for the Court just last Term that courts are ‘not required to exhibit a naiveté from which ordinary citizens are free.’”

Separately Friday morning, 16 former Watergate prosecutors urged the appeals court to reject Flynn’s petition, saying he had not exhausted his appeals and could come back if Sullivan refuses to dismiss his conviction.

Law & Crime reports, Watergate Prosecutors Are Trying to Get Involved After D.C. Circuit Demands Answers from Michael Flynn Judge:

The Watergate prosecutors, who you can read all about here, submitted a motion on Friday for leave to file a brief as amici curiae in the D.C. Circuit. They say they have a “compelling interest” to get involved and have a “unique perspective” on the relationship between the executive and judicial branches in cases when associates of a president are suspected of crimes:

The Watergate Prosecutors have given notice to the district court that they intend to seek leave to file an amicus brief in response to the Government’s Motion to Dismiss the Flynn Information. Pet. 6; see App. 2 at 64-73. After the submission of that notice, the district court issued an order “anticipat[ing] that individuals and organizations will seek leave of the Court to file amicus curiae briefs.” App. 3 at 75. Flynn’s mandamus petition now seeks to preclude the Watergate Prosecutors from participating as amici before the district court. See Pet. 16. For that reason, the Watergate Prosecutors have a compelling interest in the disposition of the petition.

The Watergate Prosecutors also bring a unique perspective to this mandamus proceeding. Flynn’s prosecution was commenced, and his conviction (in the form of a guilty plea) was secured, by the office of a Special Counsel appointed to ensure an appropriate degree of independence from the United States Attorney’s Office and litigating divisions of the Department of Justice, after the Acting Attorney General determined that such an appointment would be “in the public interest.” 28 C.F.R. §600.1(b). The Watergate Prosecutors were likewise appointed to pursue investigation of politically connected officials in an objective, non-partisan way. Because of their work as members of the Watergate Special Prosecutor’s Office, they have unique insight into prosecutorial independence and the respective responsibilities of the Executive and Judicial Branches in fostering the public’s confidence in the institutions of the criminal law when close associates of the President are suspected of crimes.

The Post continues:

The group argued judges are required “to exercise independent judgment when deciding a motion to dismiss federal charges.” They also argued that Sullivan’s preliminary “housekeeping orders” appointing a former judge to oppose the government’s motion and considering outside views “were entirely within that court’s powers.”

“Independent judgment is unquestionably informed by an adversary presentation in which not all parties are singing from the same hymnbook,” the former prosecutors wrote.

The prosecutors have asked to enter the case because the Trump Justice Department’s effort to exonerate Flynn “departs so dramatically from settled legal principles” and prosecutorial norms that it suggests it was “tailor made” because of his ties to the president, they said.

They cited Richard M. Nixon’s October 1973 order to fire the special prosecutor investigating the break-in at Democratic headquarters, which led his attorney general and deputy attorney general to resign in the “Saturday Night Massacre,” which triggered impeachment proceedings.

Andrew Crespo, Laura Londoño Pardo, Kristy Parker, and Nathaniel Sobel explain at Lawfare Blog that Judge Sullivan Can Reject the Government’s Motion to Drop Flynn’s Case (excerpt):

Two of us, along with colleagues at Protect Democracy, represent more than 960 former federal prosecutors and former high-ranking Justice Department officials (the number continues to grow). On their behalf, we plan to seek leave to file an amicus brief in the Flynn case—a current draft of which readers can find here—once a briefing schedule is set.

UPDATE: On May 20, the DOJ alumni signed a legal brief asking Sullivan to conduct “a searching review of the government’s request to protect the public interest in the even-handed enforcement of our laws.”

Our conclusion is clear: Sullivan does not merely have the authority to review the department’s motion to dismiss. As courts have described it, he has a “duty” to ensure that the dismissal is in “the public interest” and is not “tainted by impropriety” or “bad faith.” And if, after careful review, he finds that the motion is in fact tainted, his duty is equally clear: He must deny it.

Given the unique circumstances of this case—including the nature of Flynn’s actions, the Justice Department’s remarkable reversal, and the facially implausible arguments the department has offered to support that reversal—Sullivan’s obligation to conduct a thorough inquiry into the government’s decision is of the utmost importance. Assisted by Gleeson, he should conduct an evidentiary hearing into the circumstances surrounding the government’s change of heart. And if that hearing confirms what the already available public record seems to show, Sullivan should reject the government’s motion and proceed to exercise the judiciary’s core task at the end of every criminal case in which the defendant has already pleaded guilty: imposing a sentence.

Judge Neomi Rao, recently appointed by President Trump, has proven to be a loyal Trump toady who regularly disregards the rule of law in other cases. We already know how she will vote. So it comes down to Karen LeCraft Henderson, appointed by George H.W. Bush, and Robert L. Wilkins, appointed by Barack Obama.

If these two Judges allow Judge Emmett Sullivan to proceed with his plan to have retired New York federal judge John Gleeson to oppose the Justice Department’s request to dismiss the former Trump national security adviser’s guilty plea and examine whether Flynn may have committed perjury, Flynn’s lawyers will either move for an en banc review by the full Circuit Court of Appeals, or more likely, file a writ of certiorari with the U.S. Supreme Court which has more and more been acting like “Trump’s court,” as he likes to brag.

Whatever comes next, the Flynn case is unlikely to be resolved before the end of the year.

Will evil subvert justice? Or will good triumph over evil? Tune in to our next episode to find out.


  1. Interesting take from a recent Wall Street Journal Editorial:

    Federal Judge Emmet Sullivan has refused to accept the prosecution and defense agreement to drop the charges against Michael Flynn for lying to the FBI, despite a mountain of law saying he doesn’t have the authority. We wrote Friday about Justice Ruth Bader Ginsburg’s recent ruling that cuts against his decision to solicit outside briefs. And now we’re reminded of another precedent that is even more on point about the judge’s wayward logic.

    The 2016 ruling in the D.C. Circuit Court of Appeals concerned another judge’s challenge to a prosecution and defense agreement. In U.S. v. Fokker Services, Judge Richard Leon refused to accept a deferred prosecution agreement between the Obama Justice Department and a Dutch aerospace services company. He thought it was too lenient.

    Unable to persuade the judge to budge, the parties filed a writ of mandamus for relief with the D.C. Circuit. The ruling by a three-judge panel wasn’t gentle in rebuking Judge Leon’s decision as contrary to law and constitutional understanding—and for reasons that bear directly on Judge Sullivan’s misguided attempt to supplant the executive power of prosecution with his own judicial authority.

    “[D]ecisions to dismiss pending criminal charges—no less than decisions to initiate charges and to identify which charges to bring—lie squarely within the ken of prosecutorial discretion,” said the court. It quoted the court’s 1967 precedent, Newman v. U.S.: “[f]ew subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding when and whether to institute criminal proceedings, or what precise charge shall be made, or whether to dismiss a proceeding once brought.”

    Who wrote that opinion? None other than Sri Srinivasan, a Barack Obama appointee and now chief judge of the D.C. Circuit. He was joined by conservative giants Laurence Silberman and David Sentelle. The court didn’t dismiss Judge Leon from the case, but it did overrule his objections to the deal and remanded the case back to him with those instructions.

    Here’s the kicker: If the Justice Department files a writ of mandamus to remove Judge Sullivan from the case, it would go to the D.C. Circuit. A different panel might get the case but the judges would have to consider Judge Srinivasan’s precedent. It’s true the Flynn case is politically charged, but on the legal merits Judge Sullivan would be wise to stand down before he does further harm to his reputation.

    • I forget, why did Trump fire Flynn again?

      Oh, that’s right, for lying to the Vice President of the United States of America.

      What was it he lied about? Come on, you know….

  2. I worked in Russia 4 years and one of the continuing complaints from the prosecutors and defense attorneys alike (such that they existed) was the issue of “telephone justice” – the government i.e. the administration just called the judges and told them on the phone what to do with any cases they were interested in. The judges, completely dependent on the government for their jobs and paychecks, did it. So they had zero credibility as fact finders or decision makers. That is what this administration is going for – no doubt with encouragement from from his puppet master Putin.

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