Law & the Courts

Respectfully Dissenting from Judge Luttig on Flynn Mandamus

Former U.S. National Security Adviser Michael Flynn departs U.S. District Court, where he was expected to plead guilty to lying to the FBI about his contacts with Russia’s ambassador to the United States, in Washington, U.S., December 1, 2017. (REUTERS/Jonathan Ernst)
After permitting Judge Sullivan to defend himself, the D.C. Circuit should dismiss the case.

Former federal appellate judge J. Michael Luttig makes some excellent points regarding Judge Emmet Sullivan’s erratic performance in the Flynn case, writing in the Washington Post. I respectfully disagree with him, though, that the D.C. Circuit Court of Appeals should, at this stage, find Judge Sullivan has demonstrated such bias that the case should be reassigned to a different judge.

That would deprive Judge Sullivan of the opportunity to explain himself, while needlessly extending the proceedings, further prejudicing Michael Flynn. While Judge Luttig is understandably worried about the public reputation of the court, the constitutional priority here is Flynn’s due-process rights. If, as I expect, Sullivan cannot defend his recent actions, the D.C. Circuit should either directly grant the Justice Department’s motion to dismiss, or order the lower court to grant it.

The Court of Appeals’ order gave Judge Sullivan ten days to respond to Flynn’s mandamus petition. That is prudent. Sullivan is a highly experienced judge. John Gleeson, the former judge and prosecutor whom Sullivan wants to bring in as his adviser, is also well versed in criminal law. To my mind, they have both been swept away by the heated politics of the moment. Judge Sullivan, in addition, is clearly livid about putting in what may be wasted effort on the case, and no doubt feels ill-used by Flynn’s reversal of course — which happened only after Sullivan elicited from Flynn reaffirmations that he was guilty and was not seeking to withdraw his plea.

The ten days give Sullivan an opportunity to count to ten and do his duty. No one is suggesting that he needs to agree with or approve of the Justice Department’s decision to dismiss the case. He must, however, accept that this is the Justice Department’s call to make. Sometimes, the shoe is on the other foot: A judge will exercise his or her discretion in a way prosecutors believe is profoundly wrong but that is not effectively reviewable. Our justice system is rightly the envy of the world, but it relies on discretion in many instances; within wide bounds, discretion is the authority to make decisions with which reasonable minds disagree — often passionately.

The ten days also give Gleeson an opportunity to reflect on whether, in terms of his own professional ethics and the bar’s collective obligation to safeguard the court’s integrity, he should accept an appointment to advise the court on a matter as to which he has taken a very public, very partisan position.

So far, regrettably, Judge Sullivan appears to be digging in deeper. As I noted last week, his order calling for amicus briefs in a criminal case not only defies governing law, it also flies in the face of multiple orders he himself has issued in this very case — further demonstrating that he has lost perspective. It is jaw-dropping that Sullivan would compound this inexplicably poor judgment by retaining a private lawyer to represent him. Yes, an outside attorney, who has not been appointed by a president or confirmed by the Senate, has been retained (by the judge himself? By the judicial department? Who knows?) to help wield judicial power to the due-process detriment of a defendant in a criminal case — evidently because the actual judge assigned to the case senses he needs help explaining the inexplicable to the reviewing court.

It would be nice if participants in this drama could get beyond Trump derangement and remember what criminal cases are about. This matter is not about Judge Sullivan or the Justice Department. It is not even about Michael Flynn as the former Trump administration official caught up in the Trump–Russia contretemps. It is about Michael Flynn, the accused, who is presumed innocent and entitled to the full array of rights assured by the Constitution, federal procedural rules, and due-process jurisprudence.

The criminal-justice system’s principal task is to provide due process to the accused. It is human nature that judges and prosecutors often come to believe that the accused is guilty, is a rogue, is gaming the system, and so on. Yet this does not change the judge’s or the prosecutor’s duty to ensure that a defendant is afforded every protection to which the system entitles him.

Regardless of how you feel about Flynn, think about what happened here — and what you’d say about it if politics were not inflaming the public debate. The FBI serially flouted its own procedures in investigating Flynn — the lack of a basis for the investigation, the perjury trap interview, the willful decision not to advise him of all his rights or of the nature of the interview. The original prosecutors then squeezed Flynn into a guilty plea on a charge they knew was flawed, withheld exculpatory evidence that would have made the flaws obvious, and concealed from the court the full details of the plea agreement.

Meanwhile, Flynn’s original lawyers were permitted by the court and the prosecutors to represent him despite a blatant conflict of interest. That is, having counseled Flynn on submissions under FARA (the Foreign Agent Registration Act), as a result of which he was suspected of making false representations, the lawyers were actors in the facts under investigation. In ethical terms, this gave the lawyers a motive to curry favor with the prosecutors, to be less than zealous in Flynn’s defense in order to conceal their own possible negligence. I am not saying the lawyers violated the law; the point of legal ethics is to protect the public integrity of the proceedings by avoiding even the appearance of impropriety. When lawyers are involved in the facts under investigation, the conflict this creates should not be waivable. Instead, it was deemed waived. The lawyers proceeded to counsel Flynn to plead guilty to a false-statements charge under circumstances where it is now obvious that their review of the FBI’s interview report — the heart of the case against Flynn — was less than vigorous; and where they did not examine the classified Flynn–Kislyak recordings that were the purported justification for Flynn’s FBI interview (and for the prosecutors’ claim that Flynn lied). Beyond that, the lawyers joined the prosecutors in failing to inform the court of the prosecutors’ commitment not to prosecute Flynn’s son (i.e., the threat that was used to pressure Flynn to plead guilty). The recently disclosed paper trail suggests that, in this knowing omission, Flynn’s lawyers were aware that the prosecutors planned to skirt their discovery obligations if they called Flynn to testify in future cases.

The court is supposed to be a defendant’s refuge from such abuses. Instead, Judge Sullivan is laboring to deprive Flynn of the dismissal to which the Federal Rules of Criminal Procedure entitle him when the Justice Department decides to dismiss a case with prejudice. Worse, under Sullivan’s apparent conception of due process, a criminal defendant must confront not only the government prosecutors and the Justice Department’s bottomless budget, but additional scores of “amicus” prosecutors, as well as a prestigious former federal judge as the amicus-in-chief — whispering in the assigned judge’s ear that the Trump Justice Department is acting corruptly and the defendant, though presumed innocent, is probably guilty of perjury and contempt, so the judge should just enter a judgment of conviction and sentence him anyway.

I don’t think Judge Sullivan can defend what he has done here. I cannot imagine, moreover, that the Court of Appeals will look kindly on a judge so lacking in confidence about what he has done that he has retained a well-known criminal defense lawyer to try to explain it for him. But the appellate court has given him notice of its concerns and an opportunity to be heard. Judge Sullivan should be permitted to defend himself. I wish he’d think better of it, but it’s his reputation that is on the line, and he’s entitled to explain himself as he sees fit.

After he does so, though, and the explanation is found wanting, the Court of Appeals should simply dismiss the Flynn case, or remand it to Judge Sullivan with instructions to dismiss it.

Judge Luttig argues that the district court has the “power” and “the obligation . . . to determine whether dismissal of Flynn’s case would be in the public interest and whether the integrity of the judicial process would be compromised by granting the government’s dismissal request.” These are dubious propositions, overstated at best.

The court has no power to compel the Justice Department to proceed with Flynn’s prosecution, even if the presiding judge believes that dismissal would compromise the integrity of the judicial process. In that sense, the judge is in the same position that the prosecutor is in when, over the prosecutor’s vehement objection, a judge dismisses a charge at the close of the prosecution’s presentation of evidence to the jury on a finding that the proof is insufficient to establish guilt. In such instances, the judge’s dismissal of the case may be so obviously wrong that it can be said to compromise the integrity of the judicial process; no matter, the judge’s discretion is still unreviewable — the Justice Department has no power to proceed with the prosecution, no matter how indefensible it believes the ruling is. That’s our system.

More to the point, in the Flynn case, the Justice Department, though under no obligation to do so, has provided a detailed rationale for its decision to abort Flynn’s prosecution. It has, moreover, committed that its dismissal is “with prejudice,” meaning there is no danger of prosecutorial abuse — of reserving the right to prosecute Flynn at a later time, to wear down his resolve to invoke his rights to fight prosecution. It is worth stressing that the court’s main job in a criminal case is to protect the defendant from overbearing government action, not to assure a particular result that the judge believes comports with justice.

On that score, Judge Luttig rightly chastises Judge Sullivan’s abuse of discretion in “inviting outside advocates to weigh in” with amicus submissions, but I believe Luttig’s rationale misses the mark. He contends that Sullivan’s move “would make a circus of the solemn judicial proceeding.” But there are plenty of civil cases in which a torrent of amicus briefs, far from converting the proceedings into farce, is considered a valuable service to the court. To the contrary, the problem here is that inviting amicus briefs, regardless of how many, undermines Flynn’s due process rights as a criminal defendant. That is what tarnishes the integrity of the court’s proceedings.

If Judge Sullivan cannot convincingly explain why, in the face of binding D.C. Circuit precedent, he has encouraged amicus briefs, recruited a patently biased former judge to advise him, and refused to grant a dismissal that the Justice Department is within its authority to direct, then the Court of Appeals should, on its own, grant the Justice Department’s dismissal motion. Or else it should order Judge Sullivan to grant it. There is no reason to drag Flynn’s case out any further, much less assign it to yet another judge (who would be the third, Sullivan having inherited it after the still-unexplained recusal of Judge Rudolph Contreras, who presided over Flynn’s guilty plea).

At stake is a straightforward legal issue: the Justice Department’s authority to dismiss the case in a manner that protects Flynn’s due-process rights. The law is clear that the Justice Department has this power, even if a district judge subjectively believes it should not be exercised. There is no need to develop the factual record any further. Nor, at this stage, should we assume Judge Sullivan would defy an appellate court’s direction to grant the dismissal motion, such that it would be necessary for a new judge to be assigned.

It is time to bring this debacle to an end.

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