The Corner

Law & the Courts

With Election Looming, Judge Sullivan Will Drag Out the Flynn Case

Former national security adviser Michael Flynn departs after his sentencing was delayed at U.S. District Court in Washington, D.C., December 18, 2018. (Joshua Roberts/Reuters)

There are many words one might use to describe Judge Emmett Sullivan. Chastened is not one of them.

Yesterday, in an en banc (full court) ruling that went 8–2 in Judge Sullivan’s favor, the D.C. Circuit Court of Appeals declined to order him to grant the Justice Department’s motion to dismiss the prosecution of Michael Flynn. (I have a column on the homepage about the Circuit’s decision.) Today, Sullivan has reacted by issuing an order that contemplates several more weeks of litigation before he resolves the motion — a very simple motion, on which he was previously prepared to hold a hearing in mid-July (which itself was a dawdling pace).

The judge is clearly taking the Circuit’s decision as vindication, particularly after the two judges in the minority (Republican appointees on a heavily Democratic court) initially ruled that a writ of mandamus should issue. That prior ruling was wiped out, at Sullivan’s urging, by the en banc decision.

It was probably too much to hope that Judge Sullivan would take solace in yesterday’s victory, get back to work, and make his ruling on the dismissal motion. Moving quickly would have been consistent with the Circuit’s stated expectation, in the last line of its majority opinion, that the district judge “proceed with appropriate dispatch.”

Instead, Sullivan is dragging the case out. His directive today (known as a “minute order”), anticipates that in three weeks (by September 21) Flynn and the Justice Department will submit a joint status report. The judge intimates that this three-week delay is required due to a Circuit rule that orders denying mandamus do not become effective for 21 days unless some accelerating action is taken. But this is sheer gamesmanship. Nothing prevents the judge from acting on the case now. (In fact, he took action while the mandamus litigation was ongoing.) Judge Sullivan knows the parties would not object; they want a quick resolution. And the court doesn’t need a status report. Sullivan knows the status of the Flynn case like the back of his hand. The Justice Department has moved to dismiss, Flynn concurs in that motion; and even though Sullivan should not have permitted and appointed third parties (the amici) to intervene in the case, he did so, and they filed submissions. Sullivan just needs to hold a hearing (if he really thinks he needs one) and rule on the motion.

As I observe in today’s column, the worst part of the Circuit’s decision (for the justice system, not for Flynn) is its indulgence of amicus curiae participation in criminal cases. The practice, for good reasons, has been exceedingly rare and discouraged — including by Judge Sullivan, throughout his career and in the Flynn case . . . right up until he decided that appointing amici would be an effective way to resist the Justice Department’s dismissal.

And now we see the wages of the Circuit’s decision to accept rather than crack down on this practice. Sullivan orders the parties to include in their status report a proposed briefing schedule. The Justice Department and Flynn must come up with deadlines to file further replies to any other briefs that have already been submitted. Plus, not only DOJ and Flynn but Sullivan’s specially appointed amicus adviser, former federal judge John Gleeson, must figure out a time to respond “to any amicus brief of non-Court-appointed amicus curiae.”

In effect, in addition to facing government prosecutors (as Flynn has been doing for four years, at millions of dollars of expense), the criminal defendant in this case now confronts a flock of judicially deputized quasi-prosecutors, most of whom are trying to rationalize further prosecution of Flynn, even though the only prosecutor with constitutional prosecution power, the Justice Department, wants to drop the case. For its part, moreover, the Justice Department must respond to the flock of amici, who also seek to second-guess the executive branch’s discretion to commence or persist in a prosecution, notwithstanding that this is discretion no court has authority to review. We thus have exactly the separation-of-powers improprieties foreseen by the Circuit’s minority judges and given the back of the hand by the majority.

Only after all this briefing and counter-briefing is done will Judge Sullivan convene a proceeding for the purpose of hearing oral argument — on the dismissal motion, and presumably on any other legal issues raised in the sundry briefs filed by non-parties. When will that happen? We don’t know — he hasn’t scheduled it. Sullivan leaves it to the parties to propose a date. And will the proceeding just be oral argument on legal claims? Probably . . . but then again we don’t know if one of the various participants in the case will try to persuade Sullivan to hold an evidentiary hearing.

So . . . maybe a hearing in October? November? And finally a decision . . . who knows when?

The judge has given every indication that he does not believe the case against Flynn should be dismissed. He intends to explore whether he has the authority to sentence Flynn over the Justice Department’s objection, or even to pursue further charges. He does not have the power to do that. But he does have the power to keep the dismissal issue in suspended animation.

Why do that? Judge Sullivan knows General Flynn and the Justice Department want the case dismissed — Flynn for obvious reasons, DOJ to affirm the executive’s authority. The judge also knows that if former vice president Biden wins the election, a Biden Justice Department is sure to change course and withdraw the motion to dismiss. Thus, to ensure that the case against Flynn is dropped, it would be necessary for President Trump to pardon Flynn before Biden takes office.

That is not what Flynn wants; he wants to be vindicated by having the prosecuting authority that brought the case drop it. Sullivan can’t prevent a pardon, but he figures he can arrange things so the historic record is that Flynn fully admitted his guilt twice in court, and those guilty pleas were extinguished only due to a politically motivated pardon, not with judicial imprimatur.

If you figured the Flynn case would be over soon, disenthrall yourself.

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