Judge Emmet Sullivan is now a one-man circus as judge, prosecutor and defendant in the same case.
After the D.C. Circuit Court last week ordered Judge Sullivan to provide his reasoning in writing for not granting the Justice Department’s motion to dismiss in the Michael Flynn prosecution, the judge has taken the highly unusual step by hiring a defense attorney to respond for him.
Odd, given that judicial officers provide their rationale for rulings in writing routinely as part of their job, providing the legal authority they relied upon. This is done precisely so that the record is preserved for a higher court to review upon appeal.
But Sullivan didn’t render a final judgment that is now being appealed in the regular course of proceedings. He’s been ordered to “show cause” — to explain his actions — which puts him in the awkward situation of defending himself before the appellate court.
So why can’t Sullivan answer now for himself? Three possible reasons come to mind:
First, he could be concerned that any response will be used against him in disciplinary action or some adverse consequence.
Being in a defensive posture may require defense counsel. Article III judges are lifetime appointments, but still subject to some disciplinary measures under the Code of Conduct for United States Judges, which provides the ethical and judicial conduct federal judges must adhere to.
There already appears to be sufficient evidence just in the public record of Sullivan’s actions in the Flynn case that he has violated several of the canons, including that judges should uphold integrity and independence of the judiciary, avoid the appearance of impropriety, and that a judge should perform the duties of the office fairly, impartially and diligently. Sullivan could face private or public censure, or request for his voluntary retirement.
One could also argue that he is engaging in unethical political activity by allowing amicus statements against the motion to dismiss when he previously denied amicus 24 times in this same case, citing the Federal Rules of Criminal Procedure. So why allow it now, against Flynn? I’m sure the appellate court wants to know.
Michael Flynn deserves a speedy resolution and an impartial judge, like every person in our justice system.
Second, perhaps Sullivan just doesn’t have a solid rationale.
Hiring a high-profile defense attorney could help bolster his position and help him come up with a back-end explanation that perhaps he had planned to create after hearing “arguments" from his appointed amicus. Judge John Gleeson was ostensibly going to help with that, so now Sullivan is doubling down by engaging a defense attorney to help him.
As I’ve previously written, there is not any genuine legal argument an amicus could provide that would justify a judge ordering the prosecutor to continue their case when they have moved to dismiss (even after a plea has entered), especially on the clear bases the government provided in their motion. The bizarre trajectory of this case began as political and is continuing to be political, rather than just.
If Congress were doing their constitutionally vested oversight responsibility of the judicial branch rather than using it for purely political purposes, this is an example of a case meriting impeachment inquiry. Not because the House should side with any politically charged bias, but because Judge Sullivan certainly may not. Federal judges may be removed from office upon impeachment and trial in the Senate. Fifteen prior federal judges have been impeached and of those, eight resulted in convictions and removal.
Third, Sullivan could be bribed, is threatened, or is fulfilling a political promise.
There is no evidence that I’m aware of to lean toward this possibility over any others, but it’s one explanation for the bizarre behavior, especially from a judge who by all reports had a record that wasn’t particularly noteworthy for being so political and blatantly disregarding the law prior to the Flynn case. It’s also not unheard of, and with everything else we already know about the setup, cover-up, and railroaded prosecution, it’s possible.
Also, with the onerously politically biased statements already on the record from Sullivan and now dragging this on further by appointing an amicus, he appears to have some vested interest in the outcome of this case beyond his constitutional judicial role. What is his end game here? I’m sure the appellate court is interested in knowing that, too.
But whatever Judge Sullivan’s reasons, Michael Flynn deserves a speedy resolution and an impartial judge, like every person in our justice system. Further, the American public deserves to know, and the D.C. Circuit correctly ordered Sullivan to respond. The fact he apparently feels he needs to be represented by defense counsel in doing so just adds another eyebrow-raising factor into the story that doesn’t seem to make any sense.