DOJ: Flynn’s Judge in Catch-22 Situation–Either Disqualified or Not Entitled to Rehearing

July 22, 2020 Updated: July 22, 2020

According to the Department of Justice (DOJ), it’s a no-win situation for District Judge Emmet Sullivan, who’s seeking a rehearing of an appeals court decision that ordered him to accept the dismissal of the DOJ’s case against former Trump adviser Lt. Gen. Michael Flynn.

Sullivan, through his lawyer Beth Wilkinson, argued that a three-judge panel of the District of Columbia appeals court erred in its order. He’s asking for a rehearing by the full court (en banc).

But only people with a “personal stake” in the proceedings can seek appellate review, the DOJ said in a July 20 response to Sullivan’s petition.

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

Flynn’s lawyers highlighted the same issue, noting that if Sullivan indeed has a personal stake in the case, it would disqualify him as its judge.

“It is unsurprising that the district judge fails to cite a single instance in which a court of appeals has granted rehearing at a district judge’s behest,” the DOJ said.

“In fact, we are aware of only one case in which a district judge has even asked for rehearing en banc—a request the court of appeals denied.”

The DOJ response was signed by a lineup of heavy-hitters, including acting Solicitor General Jeffrey Wall, who’s responsible for arguing cases on the government’s behalf before the Supreme Court, as well as his deputy Eric Feigin, his counselor Hashim Mooppan, and five other DOJ attorneys.

Flynn, former head of the Defense Intelligence Agency during the Obama administration and former national security adviser to President Donald Trump, pleaded guilty in 2017 to lying to the FBI.

In January, he moved to withdraw his 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.

Sullivan didn’t grant the DOJ motion. Instead, he suggested he would allow third parties to weigh in on the dismissal. He also denied Flynn’s motion that argued against third-party arguments in the case.

Flynn responded by asking the appeals court for an extraordinary intervention.

Sullivan doubled down and appointed former federal Judge John Gleeson as an amicus curiae (friend of court), tasking him with developing arguments against the case dismissal. The pick of Gleeson was a signal of its own, since just days before the appointment, Gleeson co-authored an op-ed arguing for Sullivan’s launching a “full, adversarial inquiry” into the dismissal motion and possibly denying it and sentencing Flynn.

On June 24, the appeals court granted Flynn’s writ of mandamus petition and ordered Sullivan to accept the dismissal.

Sullivan hasn’t complied, taking advantage of the fact the appeals court orders take three weeks to take effect. Instead, he asked for a rehearing. His lawyer has argued that the situation isn’t sufficiently extraordinary to require the mandamus because Sullivan hasn’t rejected the dismissal yet. On July 10, the appeals court put its decision on hold, ordering Flynn to respond by July 20 to Sullivan’s petition and inviting the DOJ to do so as well.

According to the DOJ, Wilkinson used incorrect legal arguments and backed them with precedents that don’t actually support her claims.

Federal courts, including the Supreme Court, have repeatedly affirmed that the executive branch has power over bringing and dropping charges, and judges have no business second-guessing such decisions except for “extraordinary” cases, such as when a prosecutor goes rogue because of being bribed or when the judge suspects prosecutorial harassment, a situation in which the government plans to drop the charges only to bring the case again for a do-over.

None of this applies to the Flynn case, in which, the DOJ says, the case record “including newly available materials” showed the interviewing agents “and higher-ups at the FBI doubted that Flynn was willfully lying.”

Moreover, the department moved to dismiss “with prejudice,” meaning the case can’t be brought again, and Flynn agrees with the dismissal, dispelling harassment concerns.

“The parties and now a panel of this Court agree that this case should come to an end,” the DOJ said. “Yet the district judge, first through his contemplation of extended and intrusive proceedings on the government’s motion to dismiss and now through his petition for rehearing en banc, insists on keeping the litigation going.”

A majority of the appeals court judges would have to back Sullivan’s petition for it to go through. Seven of the 12 active judges were appointed by Democrat presidents. While judicial decisions don’t always break along party lines, the Flynn case has had broad political implications, particularly since the emergence of the January 2017 notes indicating that both President Barack Obama and then-Vice President Joe Biden were personally involved in the case.

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