Bench Memos

Law & the Courts

The D.C. Circuit Tells Us What “Rule of Law” Really Means to the Left

Michael Flynn arrives prior to a news conference (Carlos Barria/File Photo via Reuters)

A few months ago, I wrote about the unprecedented assault on the rule of law by liberal judges across the country. As Exhibit A, I highlighted the treatment of General Michael Flynn by U.S. District judge Emmet Sullivan. Today’s decision by the D.C. Circuit, allowing the now-farcical proceedings in the Flynn case to continue, shows how little fairness and due process matter to progressive judges in proceedings involving this administration.

To recap: After a review that exposed widespread prosecutorial abuse by the FBI, the Justice Department moved to dismiss the case against Flynn. These motions are virtually always granted as a matter of course, because, as the D.C. Circuit has recognized, only the executive branch has the authority and discretion to decide whether to prosecute a federal case.

But Judge Sullivan did not dismiss the case. Instead, he invited John Gleeson, a former judge, to make arguments against the government, and to opine about whether Flynn should also be charged with criminal contempt. The selection of Gleeson was revealing. Days earlier, he had penned an op-ed in the Washington Post accusing the administration of corruption in Flynn’s case.

Understandably alarmed, a three-judge panel of the D.C. Circuit vacated the decision to appoint Gleeson, ordered the dismissal of Flynn’s case, and warned that Judge Sullivan’s extraordinary actions raised grave separation of powers concerns, putting “two coequal branches of the Government on a collision course.”

But again, Judge Sullivan did not dismiss the case. Instead, he filed a petition asking the full D.C. Circuit court to reconsider the panel’s decision. This petition was remarkable because, under the clear rules of appellate procedure, only a “party” to a case may petition for rehearing by the full court. A judge, of course, is not a party in a case between the government and a defendant.

The D.C. Circuit decided not to let the pesky rules of appellate procedure stand in the way of the decision they intended to reach. The Court responded to Judge Sullivan’s unauthorized petition by granting his request to have the full court rehear the case.

Which brings us to today’s decision. What is most troubling about the majority opinion isn’t its contorted legal analysis or flawed assumptions. It’s what it doesn’t tell you.

It doesn’t tell you that the moment Judge Sullivan filed his rehearing petition, federal law required that he recuse himself from the underlying criminal case. It doesn’t tell you that, because this recusal was required by law, the mandamus proceedings should not have been allowed to continue, as the only non-biased option left for the D.C. Circuit was to assign the case to a different judge. And it certainly doesn’t tell you that, in the history of our justice system, it is difficult to find a single example of a judge being allowed to continue presiding over a criminal case after he argued against the positions of the defendant, the government, and a panel of the circuit court in that very case.

A bedrock principle of law in this country is that justice must satisfy the appearance of justice. That is why Congress passed 28 U.S.C. § 455, which says that a federal judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” As the late Justice Scalia explained, “impartiality in the judicial context” is “the lack of bias for or against either party to the proceeding.”  Impartiality “guarantees a party that the judge who hears his case will apply the law to him in the same way he applies it to any other party.” As Andrew McCarthy has written about (here and here), Judge Sullivan’s actions throughout the Flynn case have, to put it mildly, created a reasonable question about his impartiality.

No, the D.C. Circuit’s majority opinion doesn’t tell you any of that, though Judge Henderson’s and Judge Rao’s thoughtful dissents do. Instead, today’s majority hides the ball, telling you that there is nothing unusual to see here. It tells you that if you find yourself sued in federal court, your political views might matter more than your guilt or innocence. It tells you that due process means one thing if you are woke enough, and something entirely different if you had the audacity to work for or support the Trump administration. And it tells you, in no uncertain terms, how little the rule of law means to the modern Left.

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