The Corner

Law & the Courts

Sullivan on Sullivan

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General Flynn’s counsel, Sidney Powell, has filed petition for a writ of mandamus in the D.C. Circuit, seeking to have the appeals court instruct District judge Emmet Sullivan end his tantrum over the Justice Department’s motion to dismiss the case. Judge Sullivan’s antics include inviting a torrent of amicus briefs to help him figure out a way to deny the motion, which he must know he has no authority to do under the circumstances.

There are many things about the submission that are worth discussing, but I just want to highlight my favorite part: Ms. Powell quotes in full Judge Sullivan’s own order, dated December 20, 2017, explaining why it would be improper for a judge to allow third parties to file amicus briefs in Flynn’s criminal case — something he reportedly refused to permit some two dozen times before the dizzying U-turn he took a few days ago (my italics):

MINUTE ORDER. This Court has received several motions to intervene/file an amicus brief along with letters in support from a private individual who is neither a party to this case nor counsel of record for any party. The 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. 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. The docket is the record of official proceedings related to criminal charges brought by the United States against an individual who has pled guilty to a criminal offense. For the benefit of the parties in this case and the public, the docket must be maintained in an orderly fashion and in accordance with court rules. The movant states that he disagrees with the similar Minute Order issued by Judge Berman Jackson in Criminal Case Number 17-201, but the contrary legal authority on which he relies is neither persuasive nor applicable. Therefore, the Clerk is directed not to docket additional filings submitted by the would-be intervenor. If the individual seeks relief from this Court’s rulings, he must appeal the rulings to the United States Court of Appeals for the District of Columbia Circuit. Signed by Judge Emmet G. Sullivan on 12/20/2017. (lcegs3) (Entered: 12/20/2017).

As Flynn’s mandamus petition explains, the court rules to which Sullivan refers (i.e., the rules of the court on which he sits as a judge) expressly authorize amicus brief in civil cases, but do not authorize them in criminal cases. Those are rules Sullivan used to apply . . . until he decided to stop being Flynn’s judge and start being Flynn’s prosecutor.

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