Posted on 05/27/2020 5:46:25 AM PDT by Kaslin
Emmet Sullivan’s order welcoming amicus curiae briefs in a criminal case would cause a reasonable person to question Judge Sullivan’s impartiality.
Judge Emmet Sullivan must recuse from the Michael Flynn criminal case because he no longer maintains any semblance of impartiality.
On December 1, 2017, Flynn appeared before federal Judge Randolph Contreras and pleaded guilty to one count of making a false statement to FBI agents. Less than a week later, and without explanation, the case was reassigned to Sullivan, who has served as the presiding judge in the Flynn case since then.
Circumstances have long suggested that Judge Sullivan holds an anti-Flynn bias. After all, he once intimated during court proceedings that the retired lieutenant general had committed treason.
Then, when it came time to sentence Flynn, even though the government had touted Flynn’s extraordinary cooperation with the special counsel’s office to justify a no-jail time sentence, Sullivan indicated Flynn might well serve time behind bars if sentencing proceeded as planned. Flynn accepted Sullivan’s hint and requested a continuance to allow him to complete his cooperation with Special Counsel Robert Mueller’s office.
The delay proved providential because it allowed Flynn a chance to seek legal counsel outside his Covington and Burling lawyers, who had a serious conflict of interest. After the special counsel’s office closed, Flynn fired his Covington and Burling attorneys and hired Sidney Powell.
Indications that Judge Sullivan held an improper bias against President Trump’s former national security advisor continued to mount as Powell pushed forward. When she sought evidence from federal prosecutors, Sullivan slapped down the entire motion in a 99-page opinion, while gratuitously suggesting Powell had unethically “plagiarized” portions of her brief.
Judge Sullivan’s response to Powell’s complaint that the government had failed to provide the original FBI interview summary also struck an odd chord for a federal judge with a reputation for requiring fastidious compliance with the Brady rule—the rule that requires the prosecution to provide a defendant material exculpatory evidence. “Sometimes throughout the best efforts, notwithstanding the best efforts of everyone, things happen, and documents are lost,” the long-time federal judge opined.
While the original 302 interview summary of Flynn’s December 2016 conversation with the Russian ambassador has yet to turn up, other evidence has as the result of the independent review of the Flynn prosecution by Missouri-based U.S. Attorney Jeff Jensen. But when Powell presented this evidence to Sullivan, rather than respond with outrage over the government’s failure to produce the material earlier, Sullivan issued a terse order directing Powell to stop filing additional materials with the court until Jensen concluded his review.
Then when the U.S. attorney’s office filed a motion to dismiss the charge against Flynn, highlighting the previously withheld evidence and explaining how it established that Flynn had not committed a crime, rather than grant that motion Sullivan announced he would accept amicus curiae, or friend of the court, briefs from outside parties concerning the propriety of dismissal.
At that point, recusal under 28 U.S.C. § 455 was arguably required. Section 455 provides that “any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Sullivan’s order welcoming amicus curiae briefs in a criminal case would cause a reasonable person to question Judge Sullivan’s impartiality.
That is especially true given that when outsiders had previously attempted to file amicus curiae briefs in support of Flynn, Sullivan rejected the briefs, correctly noting that “Federal Rules of Criminal Procedure do not provide for intervention by third parties in criminal cases.”
“The Court recognizes that the movant sincerely believes that he has information to share that bears on this case, and that, understandably, he wishes to be heard,” Sullivan wrote, adding that “options exist for a private citizen to express his views about matters of public interest, but the Court’s docket is not an available option.”
But now that the government has uncovered evidence establishing the case against Flynn was concocted, Judge Sullivan welcomes “the intervention by third parties in criminal cases”?
Even if Sullivan’s order welcoming random amicus curiae into the fray didn’t cross the appearance-of-impartiality line, his order the following day appointing John Gleeson surely did. Gleeson, whom Sullivan handpicked, suggested in a Washington Post op-ed published the same day as his appointment that Sullivan should not dismiss the criminal charge against Flynn because “the record reeks of improper political influence.”
A reasonable observer would surely conclude that Sullivan’s selection of Gleeson—or at a minimum his failure to switch amicus curiae following the running of the op-ed—tells of a deep-seated bias against Flynn.
If that were still not enough under Section 455 to demand Sullivan’s recusal, the currently pending mandamus proceedings in the D.C. Circuit Court cement the conclusion that Sullivan can no longer fairly preside over the Flynn criminal case. Powell filed a petition for a writ of mandamus with the D.C. Circuit Court of Appeals a little over a week ago. In legal-speak, a writ of mandamus is an order by a higher court to a lower court to conform to the law. As I explained last week, “it is not an appeal, but rather a separate proceeding which challenges a judge’s conduct.”
Mandamus proceedings are rare and appellate courts routinely dismiss petitions requesting a writ of mandamus out-of-hand, with the local court rules providing that “the court may deny the petition without an answer.” Occasionally, however, an appellate court will order “the respondent” to answer the petition.”
In the normal course, the respondent would be the opposing party who benefitted from the trial judge’s allegedly extrajudicial conduct, and the appellate court would thus name the opposing party the respondent. In those cases, the court could still allow the judge or a friend-of-the court to respond, with the local rules providing that the court of appeals may invite the “trial-court judge to address the petition or may invite an amicus curiae to do so.”
But in the Flynn case, and a smattering of others, both sides to the case find the judge’s conduct inappropriate. In those situations, there is no adverse “respondent” to argue against mandamus. Under the court rules, then, the court could order an answer from the judge or an amicus. An example of the latter is found in the Fokker case that the D.C. Circuit handed down a few years ago.
The Fokker case, like the Flynn case, involved a situation where both the government and a criminal defendant agreed on the disposition of a criminal case, but the trial judge balked. After the government filed a petition for mandamus, the D.C. Circuit in Fokker appointed an outside attorney to act as an amicus curiae, then went on to grant the petition, holding that “decisions 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.” The Fokker court, however, did not invite the trial judge to answer the petition for mandamus, allowing him to stay on the sidelines of the dispute.
But the Flynn case is different. The D.C. Circuit court ordered Sullivan to answer the petition for mandamus by June 1, 2020. The three-judge appellate panel did not invite a response—it demanded one.
By doing so, the D.C. Circuit created an adversarial relationship between Judge Sullivan and the litigants before him. Sullivan’s retention of an outside attorney, Beth Wilkinson, to represent him further highlights the combatant position in which the supposedly neutral court now finds itself. (There was nothing improper, however, in Sullivan’s hiring of Wilkinson.) There should be no question, then, that recusal is required under 28 U.S.C. § 455, which, again, mandates recusal “in proceedings in which the judge’s impartiality might reasonably be questioned.”
Because the Flynn case represents a sliver of the already miniscule mandamus cases meriting an answer, there is scant precedent on the recusal question. The sparse case law available, however, makes clear that recusal is required under Section 455.
In United States v. Craig, the defendants in an underlying lawsuit sought to disqualify the presiding judge, Judge Highsmith, pursuant to Section 455, “solely because he submitted a brief in response to the Eleventh Circuit Court of Appeals’ order directing him to answer the petition for write of mandamus.” That order, like the D.C. Circuit’s order, “directed Judge Highsmith to respond within 10 days and requested that he address two specific cases.” Judge Highsmith “promptly complied” with the directive.
After the Third Circuit resolved the mandamus question, the defendants sought recusal of Judge Highsmith, and the government agreed that “the court’s impartiality might be questioned since it personally responded to defendants’ mandamus petition.” The court agree and ordered recusal, citing the Third Circuit decision in Alexander v. Primerica Holdings, Inc..
In that case, the court concluded that a judge’s letter to the petitioner rebutting allegations in a petition for writ of mandamus raised an appearance of partiality. Also cited was the Rapp v. Van Dusen decision that modified the mandamus proceedings to eliminate the need for a judge to personally answer routine petitions for writs of mandamus and thereby avoid becoming an active party in the litigation.
This case law—and common sense—mandate Judge Sullivan’s recusal.
The question of recusal, however, may soon be mooted. If the D.C. Circuit grants Flynn’s petition for mandamus and orders dismissal of the criminal case, it will almost certainly reassign the case on remand to a different judge.
The new judge will then merely execute the appellate court’s mandate, i.e., dismiss the criminal case. That approach will remove the case from Sullivan’s courtroom without forcing the appellate court to declare Sullivan in violation of Section 455.
But the recusal issue could still rear its head if the appellate court does not also nix any attempt by Sullivan to hold Flynn in criminal contempt of court for perjury; or if the long-time federal judge decides to issue a flurry of rulings before the D.C. Circuit rules on the mandamus petition. Under either of those scenarios, Sullivan’s rulings would be subject to attack based on his failure to recuse under Section 455.
We should know within a week the likely outcome of the mandamus petition and then the next steps in this long-running legal battle.
Perhaps but really needs to occur is Chief Justice RobertsIdiot stepping in and setting Judge SullivanIdiot straight with prejudice.
The Deep State is delaying this for as long as possible. Heaven help certain people if the left manages to steal the WH with *massive* voter fraud. It’s the only way Biden would defeat Trump this November.
Roberts is Deep State. He's not stepping into anything willingly.
They want Trump to pardon Flynn. He is not taking the bait.
Sullivan is the last line of deep-state defense to keep Flynn from talking. Flynn has been gagged throughout this, and has respected the process so far. Sullivan is playing a standard rear-guard delaying action. He can’t last much longer.
I hope Flynn displays some righteous anger when this is done and tells the world what he knows about Obama, Iran, CAIR and everything else he was a witness to
“”” Less than a week later, and without explanation, the case was reassigned to Sullivan, who has served as the presiding judge in the Flynn case since then”””
When will the DC Court release the documents as to why Contreras was removed from the Flynn case?
“a federal judge with a reputation for requiring fastidious compliance with the Brady rule” This is part of the problem. Even critics accept the Deep State propaganda. Everyone has a great reputation until they are exposed. Look at the Stevens case to see Sullivan’s “fastidious compliance with the Brady rule”.
> He can’t last much longer.
Let’s see, respond by June 1, another week for the response shooting him down, appoint another judge (two or three weeks), then a dismissal, or some other stall tactic. So, free of charges by Independence day?
Can he sue Covington and Burling for legal malpractice?
Come on SCOTUS, step up to the plate and reign in these liberal judges who think they now control all three branches of the Republic.
How many times have we seen the lefties fail, and as soon as it is all over, they pull a Julie Swetnick out of thin air.
This is the same thing - is should be over, but then Sullivan pulls a request for amicus out of thin air.
Chief Justice RobertsIdiot is terrified that if we find out who is blackmailing/bribing Sullivan, the trail will lead right to him.
He should, he paid them millions and they rolled him. Their discovery was pathetic.
Secondly Covington prepared the foreign agent form that was held against Flynn for being incomplete. They had a strong incentive to get Flynn to plead on the lying to the FBI charge to get that off the table.
I thought Contreras recused because of the alleged relationship between he and Strozk. Wasn’t this about the time the OIG advised the special counsel of the text messages?
Strozk was up until that point the key witness against Flynn.
Strozk left the special counsel, but they still had a problem in that the Judge hearing the Flynn case allegedly had an undisclosed relationship with the key witness indicating some kind of friendship or relationship beyond disinterested professionalism.
This relationship has never been clarified to my knowledge, but this is my best guess. The OIG, once they learned of the text messages and realized how bad they looked (despite his inability to call it bias) immediately notified the special counsel, DOJ, and possibly the court of what they contained.
Judge Sullivan has five days. Dave Gregory’s wife (you remember him; He illegally carried a semiautomatic handgun into the DC studio) will have to think fast.
“”””I thought Contreras recused because of the alleged relationship between he and Strozk.””””
That is true and the public has known about that for a long time.
The point is the courts have never said anything as to why Contreras was recused. SHOW US THE DOCUMENTS.
“””Less than a week later, and without explanation, the case was reassigned to Sullivan”””
I bet Flynn’s book is going to be an interesting read. If I were him, I’d have been working on a book outline and documentation that exposes Obama all along.
Judges rarely elaborate on why they recuse themselves. It is incumbent on the court to recognize a potential conflict and when they do the Judge is expected to recuse themselves. They don’t have to provide a justification.
The Flynn case was very high profile. Lest, we forget, at that point in time there were many of us correctly pointing out how rotten it all appeared. While the left (media) treated us as tinfoil hat wearing conspiracy theorists, the Judge knew it would all come out in the wash and lend credibility to us so he stepped aside.
The conflicts on the staff of the special counsel alone were enough for many of us to cry foul, but the text messages by Strozk to Page indicating that he would talk to the Judge at the next “cocktail clink” they both attended were pretty damning.
To be fair to the Judge, we don’t know what his view of the relationship was, but Strozk clearly was proud of the assertion that he and Contreras were somehow buddies. Bravado, BS, or real? We will likely never know.
With that said, I want to know if the courts had backchannel communication with the special counsel staff. This would be highly irregular as most things are with this debacle.
I also want to know more about the allegation of Judge Sullivan arranging for Comey to speak at Howard University for 15 minutes for the sum of 100k. Given that Comey was in charge of the FBI that brought the case against Flynn and he was potentially a fact witness, this is very curious and appears to be a conflict, but it needs to be further explored given the source.
Their “scheme” continues to fall apart. At this point, I do not see how everyone walks away from this without penalty.
“Chief Justice Roberts...is terrified that if we find out who is blackmailing/bribing Sullivan, the trail will lead right to him.”
I agree.
He probably by now loves his adopted-in-mystery kids.
So many skeletons in closets in the DC cesspool. So many dirty folks, fervently hoping those maggot-chewed bones never see daylight.
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