Posted on 10/31/2020 10:04:52 AM PDT by Kaslin
Sullivan’s apparent animus toward Flynn's attorney and his fixation on Flynn being punished demonstrate bias in this case — sufficient to require his disqualification.
In the latest development in the seemingly never-ending Michael Flynn case, his attorney has filed a motion for the trial judge, Emmet Sullivan, to disqualify himself for bias or the appearance of it. Flynn’s counsel, Sidney Powell, had raised the bias issue during the Sept. 29 hearing on the Department of Justice’s motion to dismiss the case against Flynn. Sullivan is likely to move on this case immediately after the election, so the question of his bias is an important one as Nov. 3 looms.
Powell’s motion arguing for disqualification includes a mountain of support. Many of the issues she cites are not adequate, in my view, to warrant disqualification, and I will not discuss them here. (You can read my analysis of them on Twitter.) Two issues have merit, however, and require that Sullivan disqualify himself. They demonstrate he is no longer acting as an impartial jurist in this case, or, at a minimum, they create an appearance of bias such that a reasonable member of the public would not believe he is acting impartially.
First, Sullivan displayed inappropriate and unwarranted rancor toward Flynn’s counsel, Powell, particularly during the Sept. 29 hearing. Second, a number of Sullivan’s actions and statements evince an apparent intent to see that Flynn is punished somehow, even if he must dismiss this case.
The statute governing recusal of federal judges, found at 28 U.S.C. § 455, and the canons of judicial ethics, require that a judge disqualify himself from further participation in a case if his “impartiality might reasonably be questioned.” Judges are to recuse themselves when they have actual bias against a party or the appearance of such bias.
Bias in this context essentially means the dislike of a party for reasons other than the facts of the legal case at hand. A judge is entitled to form an opinion about the person based on those facts. Dislike of a party for other reasons, however, is a basis for disqualification, as is deep-seated antagonism that would make fair judgment, or the appearance of it, impossible.
The rules require that a motion to recuse (disqualify) be made first to the judge himself. Judges are supposed to be “big enough” people to dispassionately evaluate the merits of such a motion. Powell’s motion is incendiary (accusing him of outright political bias) and radical (demanding that he produce documents to Flynn, although there’s no legal authority cited for this demand).
All of that is irrelevant, however, to the question of whether Sullivan’s conduct falls below the standard of impartiality required of a federal judge. If Sullivan denies the motion, Flynn can seek a writ of mandamus from the court of appeals to order the disqualification.
Antagonism toward a party’s lawyer is a classic example of bias that warrants disqualification. It is improper for a judge to be influenced in his handling of a case or rulings on it because he dislikes a party’s attorney. A judge must set such irrelevant, personal considerations aside. If he cannot, he must disqualify himself.
During the Sept. 29 hearing, Sullivan obviously treated Powell in a more peremptory and dismissive fashion than he did either government counsel or amicus counsel (former Judge John Gleeson). Sullivan cut off her arguments and explanations but didn’t do so to the other counsel.
Powell attached to her motion eight pages of tweets in which ordinary people who listened to the proceedings commented on what they perceived as the judge’s bias against her or Flynn. Although not dispositive, these real-time observations of the perceived fairness of the proceeding by the public are probative.
Moreover, during the hearing, Sullivan improperly accused Powell of unethical conduct. He said she acted unethically in writing a letter to Attorney General William Barr asking for a review of Flynn’s case before she had entered her appearance in court as Flynn’s attorney. Sullivan not only confronted Powell about this, but he asked government counsel to comment on whether it was ethical and threatened to file a complaint with attorney disciplinary authorities about it.
First, nothing about Powell’s conduct was wrong. It is not unethical for a defense counsel to ask a senior official to review a case; lawyers do this all the time. It is entirely proper to seek review on the merits by officials empowered to overrule or alter the decisions of subordinate personnel. Powell’s letter is 100 percent ethical behavior.
Second, nor was it unethical for Powell to write the letter before entering her appearance as Flynn’s attorney in the pending court case. There is no requirement that an attorney must enter an appearance in court before acting as counsel for a defendant outside of court, even if the attorney’s actions relate to the court proceeding. Clients are entitled to engage as many lawyers as they please — some for court, others for outside-of-court assistance, others perhaps to negotiate a plea or settlement. This is routine and completely ethical.
Third, Sullivan’s fixation at the hearing on whether Powell’s letter was ethical clearly demonstrates bias against her because that issue had absolutely nothing to do with the DOJ motion to dismiss. The court could have inquired into whether DOJ’s motion was the product of bribery or corruption, but the letter was already in the record and its contents were entirely proper.
Any inquiry by the court about Powell’s letter should have related to the issue of favoritism for Flynn, not her ethics. That Sullivan nevertheless aggressively attacked Powell about her ethics in open court, in front of her client, and invited her opposing counsel to opine on her ethics, is a blatant display of impermissible antagonism.
The other reason Sullivan must recuse himself is that he has displayed an apparent desire to see that Flynn will still be punished even if the case must now be dismissed. This, too, is inappropriate and demonstrates that Sullivan is not acting impartially.
When Sullivan appointed an amicus to advise him about whether to grant the DOJ’s motion to dismiss, he also directed the amicus to give advice as to whether he should issue a show-cause order to hold Flynn in criminal contempt for perjury because Flynn had disavowed his guilty plea.
This second request was extraordinary. First, it displayed ignorance of the law; the Supreme Court decided 100 years ago that perjury does not constitute contempt of court. Second, and significantly for disqualification purposes, trial judges never seek to punish a defendant for filing a motion to withdraw a guilty plea.
It is a safe bet that during the 26 years that Sullivan has been on the federal bench, he has never contemplated such a step before, nor have any of his colleagues on the D.C. District Court bench. Sullivan contemplating this step with respect to Flynn is a neon sign that he has lost his objectivity and impartiality in this case.
Sullivan again displayed an apparent desire to see Flynn punished during the Sept. 29 hearing. Although DOJ has moved to dismiss the case against Flynn “with prejudice,” meaning Flynn could not be prosecuted again, Sullivan asked whether he can instead dismiss without prejudice, noting that a new administration at DOJ might decide to pursue the case. Similarly, Sullivan inquired into whether Flynn could still be charged for violating the Foreign Agents Registration Act — to which Flynn did not plead but which was included as additional “relevant conduct” for purposes of his plea — if he dismisses the current case.
It might be argued that Sullivan was “just asking” these questions and that posing questions does not necessarily demonstrate bias. The clear import of these lines of questions, however, was not an academic inquiry but to determine if there is still a path for punishing Flynn even if the current case has to be dismissed.
Moreover, judges simply do not pose these questions when the government moves to dismiss a criminal case because it is none of their concern under the separation-of-powers principles. The only reasonable conclusion to draw from Sullivan’s “inquiries” is that he is far too interested in determining if there’s “some way, any way” that Flynn can still be punished for something.
Sullivan’s apparent animus toward Powell and fixation on Flynn being punished are each sufficient to support the conclusion that he suffers from actual bias in this case or, at a minimum, has shown the appearance of it — which are sufficient to require his disqualification.
As the government pointed out in its response to Powell’s motion for disqualification, however, Sullivan need not rule on disqualification if he simply grants the DOJ’s pending motion to dismiss the case with prejudice. While normally a motion to disqualify should be resolved before any other substantive matter, clearly an order to dismiss the case with prejudice would be entirely in Flynn’s favor and thus not realistically subject to a claim of improper bias. That is not the outcome we will probably see.
If Sullivan denies the motion to disqualify, Powell will likely file a second request for a writ of mandamus and ask the court of appeals to disqualify him. The saga is probably far from finished.
Sullivan needs to be impeached and convicted. But his fellow Demonicrat traitors in Congress won’t do it.
it is time to release the pics of the dirty Sullivan clan.
This has been going on for a long time. Why has not Sullivan been removed and disbarred?
Sullivn should be in an orange jump suit awaiting trial for criminal acts.
Is Sullivan that confident that Obama has his back? He appears to be a very biased man and an embarrassment to the judiciary.
To me, Sullivan disqualified himself as “impartial” when he called LTG Flynn a “traitor” in open court.
King Sullivan has shown how corruption exists
in the Judicial Branch, and why many blackrobes
should be in jail (with their criminal sons).
Powell was on Lou Dobbs this am. She said the Judge is stalling for election results in hopes for new AG. It’s just sad what they have done, doing to the General.
As soon as the election is over, Flynn will be pardoned.
The problem is Sullivan is waiting to see if Biden is elected and a new AG comes in to withdraw the motion to dismiss. If Biden is elected, he will stall on ruling on the motion to recuse until there is a new AG. If Trump wins, he will dismiss the case to avoid ruling on the motion to recuse. He is a sleazebag. After this is over, Powell should lodge a ethics complaint against him both with the Federal judicial administrators and the DC bar
Fair to ask why it's so personal to him. Who is really pulling his strings? Regardless, he's 100% committed.
Sullivan has already been given a carte blanche by the D.C. Circuit. Democrat judges on that Appeals Court have essentially said that Sullivan can do whatever he wants. They told him to move quickly, but he put his court into low range, 1st gear and nothing but crickets from the Appeals Court. Clear corruption from the Federal Judiciary.
Regardless, he’s 100% committed
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Respectfully, I don’t think so. I think he’s just hoping against hope that Trump will lose and he can still sentence Flynn to prison with a Marxist/Socialist, America hating president like Kamala Harris.
The headline seems predicated on the assumption that Sullivan is an “honorable” man.
That’s a major logical flaw.
“Here’s Why Judge Sullivan Must Disqualify Himself From Michael Flynn’s Case”....
For Sullivan to disqualify himself, Sullivan would have to be a fair, non-partisan, and committed to the rule of law person.
Sullivan is non of these!
Sullivan is an outlaw and doesn’t care about what he “should” do. He will keep causing trouble as long as he can.
The problem with that is, that even if Bide wins he doesn’t get sworn in until Jan 20. Sullivan will have to rule before then or Sidney Powell has more than enough grounds to go back to the appeals court which really can’t dismiss it again.
Sullivan should be in jail.
Flynn & Powell do not want a presidential pardon. They want max legal traction to sue the pants off of all concerned corrupt entities. And there are many.
The filthy left was determined to keep Flynn quiet until at least the election and they’ve succeeded. That’s all that Sullivan’s stalling has been about. Flynn has way too much damaging evidence against Obama and company.
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