Maybe Judge Luttig was right all along.
I had the misgivings you’d expect back in late May, when I disagreed with J. Michael Luttig, the stellar scholar and former federal appeals court judge, regarding how the D.C. Circuit Court of Appeals should handle the Flynn case.
At the time, that court’s three-judge panel had not yet heard oral argument on Michael Flynn’s mandamus petition — i.e., Flynn’s request that the panel find that federal district judge Emmet Sullivan was acting lawlessly. Sullivan had not only failed to grant the Justice Department’s motion to dismiss the criminal case against Flynn; he had appointed a former federal judge (the overtly anti-Trump John Gleeson) to posit the argument abandoned by DOJ — to wit, that Flynn should proceed to sentencing because he had pled guilty to a false-statements charge, waiving his right to contest the case any further in exchange for the government’s agreement not to file any other charges. Basically, Flynn was asking the appellate court to order Judge Sullivan to dismiss the case.
In a Washington Post op-ed, Luttig contended that “there are ample grounds in the actions the district court has already taken for the appeals court to order that the government’s motion to dismiss be heard by a different judge, and it should so order.”
It is interesting to revisit this assessment in light of an order issued by the D.C. Circuit on Wednesday. The Circuit directed that the participants in the dispute over Judge Sullivan’s actions, including Judge Sullivan himself, must address the question of whether Sullivan should either recuse himself or be disqualified by the Circuit. Arguments in the case will be heard this coming Tuesday, August 11, in a rare en banc review by the full Circuit (i.e., all active judges who have not taken senior status, minus one who has recused himself, so it will be a ten-judge panel).
Let’s back up for a moment.
Back in May, I disagreed with Luttig because I thought the more important issue was prejudice to Flynn, not the harm Sullivan’s apparent bias was causing to the court’s integrity. At the time, the D.C. Circuit had given Sullivan ten days to respond to Flynn’s mandamus petition. I argued that, rather than reassigning the case to another judge, the Circuit should give Sullivan a chance to explain himself. If he was unable to do that to the Circuit’s satisfaction, I posited that the Circuit should then order him to dismiss the case.
After Luttig and I, among other commentators, weighed in on what the appellate court should do, a three-judge panel heard argument. The panel granted Flynn’s mandamus petition and ordered Sullivan to dismiss the case. The 2–1 majority reasoned that, with possible exceptions that do not apply in Flynn’s case, the Justice Department’s discretion to end a prosecution is unreviewable. A dissenting opinion countered that mandamus, which is an extraordinary remedy disfavored by courts absent truly egregious judicial lawlessness, was premature — i.e., that Sullivan should be permitted to conduct a hearing and, if he decided not to grant dismissal, Flynn could then appeal. That would be the normal route to appellate review in a criminal case.
After the panel ruled for Flynn, Judge Sullivan asked the Circuit to rehear the case en banc. Sullivan’s petition was remarkable because he is not a party in the case. The only parties in a criminal prosecution are the government and the accused. The judge is the arbiter, not a litigant. The court is not supposed to have a stake in the outcome. It is unseemly for a judge to act as if he has become invested in the outcome of a case the way a party is. It strongly suggests a loss of judicial perspective.
Nevertheless, the D.C. Circuit granted Judge Sullivan’s petition. It vacated the panel’s ruling and agreed to full-court review.
At first blush, this seemed like doom for Flynn. After all, the full court skews heavily Democratic: seven of the ten judges who will hear the case were appointed by Democratic presidents. There are only four Republican appointees, and as noted above, one (appointed by President Trump) has recused himself. In modern times, there are enough blatantly politicized judicial decisions that people can be forgiven for assuming that partisanship always trumps law. Indeed, in the three-judge panel decision, the two majority judges who ruled in Flynn’s favor were Republican appointees, while the dissenter was a Democratic appointee.
Nevertheless, the mandamus litigation in Flynn’s case is not a brute political matter. Anyone who listened to the oral argument could tell how reluctant the judges seemed about issuing a mandamus writ against Judge Sullivan, even if they were convinced that he was wrong on the law. Furthermore, the main Circuit precedent, United States v. Fokker Services B.V. (2016), which clearly indicates that the Justice Department’s dismissal motion should be granted, was written by Chief Circuit Judge Sri Srinivasan. He is often touted as a potential Supreme Court nominee in a future Democratic administration. For him, then, the case is a Catch-22: Walking away from his own reasoning in Fokker would be a bad look, while ruling in Flynn’s favor would be very unpopular among Democrats. In addition, we should note that any of the Circuit’s judges could have asked for en banc review by the full court. None did. The case is being heard because Sullivan himself pressed the issue.
The complications presented by the mandamus dispute were evident in the Circuit’s initial order scheduling the rehearing en banc, which added an intriguing directive: “The parties should be prepared to address whether there are ‘no other adequate means to attain the relief’ desired” (quoting from the Supreme Court’s 2004 decision in Cheney v. U.S. District Court). I interpret this somewhat cryptic assertion to indicate that, while the Circuit judges have agreed to reconsider the panel’s ruling because courts are generally hostile to mandamus, that hardly means the judges approve of the circus that Sullivan has made of the Flynn proceedings.
The judges seemed to be signaling that they know the case should be dismissed, but they’d prefer not to slam a longtime district judge if there is some way to avoid doing so. Perhaps they could deny the writ, but couch the denial in a way that reminded Judge Sullivan that a court must neither take over the prosecutor’s role nor probe the executive’s decision-making in a matter that the Constitution commits to executive discretion.
That is what makes Wednesday’s subsequent order regarding the en banc proceeding so interesting. The Circuit instructs counsel for Flynn, the Justice Department, and Judge Sullivan to consider the effect of Congress’s disqualification statute (Section 455 of Title 28, U.S. Code). Specifically, the participants in the mandamus dispute are told to address the law’s mandate that a judge be disqualified “in any proceeding in which his impartiality might reasonably be questioned,” particularly if the judge “is a party to the proceeding.”
Manifestly, at least some of the Circuit’s judges (I’d wager most of them) are disturbed by the degree to which Judge Sullivan has exhibited bias and become invested in Flynn’s case. This is exactly the problem on which Judge Luttig focused back in May.
It could thus turn out that Luttig presciently homed in on the dispositive issue. I believe, though, that it’s more a matter of new developments breaking, perhaps inevitably, in favor of disqualification. At the time Luttig wrote his op-ed, I still think it would have been premature for an appeals court to jump in and disqualify Judge Sullivan. The parties were not pushing for Sullivan to be removed, just that he be directed to grant the dismissal motion. And even in making his disqualification argument, Luttig conveyed some hesitation. He said the Circuit panel should grant the mandamus but in a more limited way than Flynn was suggesting: Have Judge Sullivan pick a different adviser (someone other than the explicitly biased Gleeson), then promptly rule on the motion to dismiss, explaining his reasoning in full so the appellate court could review it.
That is not consistent with Luttig’s other suggestion of having the case reassigned to another judge. But it was right: As things stood back in May, Sullivan should have been given an opportunity to do the right thing. Most of us were hoping he’d correct himself, rather than need to be corrected by a higher court.
Plus, let’s put personalities aside, as well as the understandable distaste judges have for mandamus (which essentially asks them to dress down a colleague). A federal appeals court also has very practical reasons for discouraging mandamus. The regular appellate process calls for a criminal case to be appealed only at the end of the lower court proceeding. At that point, the trial or plea is over, sentence has been imposed, the judgment has been entered, and the appeals court can deal with all the claims of error at once, with finality. Courts do not want to encourage litigants to start viewing mandamus as a way to appeal to the higher court in the middle of the lower court proceedings, any time a party claims a judge has made an error. Chaos would reign and cases would never end.
That said, things have significantly changed in the nearly three months since we analysts first opined on the mandamus dispute.
For one thing, Judge Sullivan retained his own counsel to argue the case on his behalf before the panel, as if he were a party. Then, when the panel’s decision did not go the way he wanted it to go, he took the highly unusual step of seeking en banc review. As the Justice Department pointed out, Sullivan did not have standing to seek reconsideration; he is not a party and did not comply with the rules government officials are supposed to follow before seeking a rehearing.
More to the point, by seeking full-court reconsideration of the mandamus matter when both the Justice Department and Flynn are seeking dismissal of the case, Sullivan is both causing prejudice to the defendant and stoking suspicion about the executive branch’s motives. How, then, could Sullivan continue to be considered a fair and impartial judge, fit to rule on the Justice Department’s dismissal motion?
That question may signal something about the wisdom of the D.C. Circuit judges that I previously failed to appreciate. The Justice Department’s contention that Sullivan lacks standing seemed compelling to me. I was surprised when the Circuit appeared to ignore it in granting Sullivan’s request for full-court review; I thought they’d deny it and let the panel’s ruling stand. But is it possible that the Circuit saw this as a graceful off-ramp? When none of the Circuit’s judges asked for full-court reconsideration, that signaled to Sullivan that if he wanted it, he would have to ask for it himself. The Circuit judges probably calculated that if the irascible Sullivan made a formal application for rehearing en banc, it would be manifest that he had transformed himself into a party in the Flynn case. Then the Circuit could use the disqualification rule to nudge him aside for the sake of maintaining the judiciary’s reputation for objectivity. That would avoid all the downsides of issuing a mandamus writ while gently reminding lower court judges that they are supposed to remain umpires in these contests, not become one of the players.
To sum up, whatever one may have thought about the gravity of Sullivan’s irregular behavior back in May, he has now clearly crossed the Rubicon. It is incumbent on him to recuse himself. If he can’t bring himself to do that — a failure that would further demonstrate a lack of judicial detachment — the D.C. Circuit should disqualify him. Either way, the case should be reassigned to a new judge, who should promptly grant the Justice Department’s motion to dismiss.
I’ll conclude with a verity that seems sadly lost on Judge Sullivan: Granting the Justice Department’s dismissal motion would not be a judicial endorsement of the motion, much less a court ruling that Flynn is not guilty. Judge Sullivan is absolutely entitled to believe the Justice Department is wrong to dismiss the case, and that Flynn is as guilty as the day is long. What a judge is not entitled to do, however, is substitute his view for the prosecutor’s on the question of whether a prosecution should continue. In our system, separation of powers principles make that the Justice Department’s call.