Appeals Court Asks Whether Flynn Judge Should Recuse Himself, Order Indicates

August 5, 2020 Updated: August 5, 2020

The U.S. Court of Appeals for the District of Columbia Circuit has ordered former Trump adviser Lt. Gen. Michael Flynn as well as the judge presiding over his case to prepare arguments on whether the judge should recuse himself for partiality or for becoming a party to the case.

The order highlights the anomalous state of the case. Both Flynn and the prosecutors nearly three months ago agreed that the criminal “information” against him—allegedly lying to the FBI—should be dismissed. But District Judge Emmet Sullivan refuses to do so.

The appeals court’s three-judge panel ordered Sullivan to accept the case dismissal in June, but he appealed for a rehearing before the full court of 11 judges.

The appeals court vacated the three-judge order on July 30 and set a hearing for Aug. 11.

In its subsequent order on Aug. 5, the court told Flynn and Sullivan to “be prepared to address at oral argument the effect, if any, of 28 U.S.C. Sections 455(a) and 455(b)(5)(i) on” Sullivan’s petition for rehearing.

The parts of the statute listed by the court stated that a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned” and also when he “is a party to the proceeding.”

The order underlines Sullivan’s catch-22 situation, both Flynn and the Department of Justice (DOJ) noted in their written responses to his petition.

Only people with a “personal stake” in the proceedings can seek appellate review, the DOJ wrote in its July 20 response.

“A judge does not have—and under the [Constitution’s] Due Process Clause, cannot have—such a stake,” the department stated.

Flynn’s lawyers noted in his response that if Sullivan indeed has a personal stake in the case, it would disqualify him as its judge.

Flynn was head of the Defense Intelligence Agency during the Obama administration and former national security adviser to President Donald Trump. In 2017, he pleaded guilty to lying to the FBI. In January, he moved to withdraw the plea.

In May, the DOJ moved to dismiss the case after a review uncovered documents suggesting the FBI questioned Flynn solely to elicit false statements from him, rather than for a legitimate investigative purpose.

A motion to dismiss usually marks the end of a case, but instead of granting it, Sullivan suggested he would allow third parties to weigh in on the dismissal. Flynn’s lawyer moved to oppose third-party involvement, but Sullivan dismissed the motion.

Flynn responded by asking the appeals court for an extraordinary intervention (writ of mandamus).

Sullivan doubled down and appointed former federal Judge John Gleeson as an amicus curiae (friend of the court), tasking him to develop arguments against the case dismissal. He then ordered a hearing on the matter.

Just days before his appointment, Gleeson had co-authored an op-ed arguing for Sullivan’s launching a “full, adversarial inquiry” into the dismissal and possibly denying it and sentencing Flynn.

The appeals court’s three-judge panel, in a split 2–1 decision, granted Flynn’s mandamus, saying Sullivan’s planned hearing would have been damaging to the executive branch as it “would likely require the Executive to reveal the internal deliberative process behind its exercise of prosecutorial discretion.”

Because the Constitution leaves charging decisions to the executive, a hearing on dismissal motion is only appropriate in some rare cases, which Flynn’s “is plainly not” and “cannot be used as an occasion to superintend the prosecution’s charging decisions,” stated the opinion, authored by Judge Neomi Rao, a Trump appointee.

In vacating the decision, the appeals court signaled that the majority of the judges weren’t convinced.

It ordered that “the parties should be prepared to address whether there are ‘no other adequate means to attain the relief’ desired.”

Seven of the 11 active judges were appointed by Democrat presidents. In addition, one Trump appointee, Judge Gregory Katsas, recused himself from the case. 

Judicial decisions don’t always break along party lines. The Flynn case, however, has drawn political controversy, particularly since the emergence of evidence indicating that both then-President Barack Obama and Vice President Joe Biden were personally involved in the case.

Documents show that Obama discussed the case with the director of the FBI and a top Justice Department official in January 2017, a day after investigators at the FBI intended to dismiss the case but were held off by the higher-ups.

Ivan Pentchoukov contributed to this report.

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